Russia’s Withdrawal of Signature from the Rome Statute Would not Shield its Nationals from Potential Prosecution at the ICC

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On 16 November 2016, the president of the Russian Federation issued bylaw № 361-rp “On the Russian Federation’s intention not to become a party to the Rome Statute of the International Criminal Court”.

It follows from paragraph 1 of the bylaw that the Ministry of Justice of the Russian Federation, after consultations with a number of State organs, including the Supreme Court, the Prosecutor-General’s Office and others, suggested to:

dispatch a notification to the Secretary-General of the United Nations about the Russian Federation’s intention not to become a party to the Rome Statute of the International Criminal Court, which was adopted by a Diplomatic Conference of Plenipotentiaries under the auspice of the UN in the city of Rome, on 17 July 1998, and which was signed on behalf of the Russian Federation on 13 September 2000.

As Russia’s Ministry of Foreign Affairs (MFA) explained in an official statement on the same day, the most immediate effect of bylaw № 361-rp would be the withdrawal of Russia’s signature of 13 September 2000 from, and not proceeding to the ratification of, the Rome Statute in accordance with its Article 126. Officially, the MFA criticised the ICC for its alleged lack of efficiency and independence, biased attitude and high cost:

The ICC as the first permanent body of international criminal justice inspired high hopes of the international community in the fight against impunity in the context of common efforts to maintain international peace and security, to settle ongoing conflicts and to prevent new tensions.

Unfortunately the Court failed to meet the expectations to become a truly independent, authoritative international tribunal. The work of the Court is characterized in a principled way as ineffective and one-sided in different fora, including the United Nations General Assembly and the Security Council. It is worth noting that during the 14 years of the Court’s work it passed only four sentences having spent over a billion dollars.

In this regard the demarche of the African Union which has decided to develop measures on a coordinated withdrawal of African States from the Rome Statute is understandable. Some of these States are already conducting such procedures.

Yet, although the Ministry’s statement did not mention this, the true reason for Russia’s decisive move must have been the publication, on 14 November 2016, of the ICC Prosecutor’s annual Report on Preliminary Examination Activities. The Prosecutor suggested, in particular, in paragraph 158 of the Report:

[T]hat the situation within the territory of Crimea and Sevastopol amounts to an international armed conflict between Ukraine and the Russian Federation. This international armed conflict began at the latest on 26 February when the Russian Federation deployed members of its armed forces to gain control over parts of the Ukrainian territory without the consent of the Ukrainian Government. The law of international armed conflict would continue to apply after 18 March 2014 to the extent that the situation within the territory of Crimea and Sevastopol factually amounts to an on-going state of occupation. A determination of whether or not the initial intervention which led to the occupation is considered lawful or not is not required. For purposes of the Rome Statute an armed conflict may be international in nature if one or more States partially or totally occupies the territory of another State, whether or not the occupation meets with armed resistance.

The Prosecutor also suggested in paragraphs 168 – 170 of the Report that:

Based on the information available it seems that by 30 April 2014 the level of intensity of hostilities between Ukrainian government forces and antigovernment armed elements in eastern Ukraine reached a level that would trigger the application of the law of armed conflict […]

Additional information, such as the reported shelling by both States of military positions of the other, and the detention of Russian military personnel by Ukraine, and vice-versa, points to direct military engagement between Russian armed forces and Ukrainian government forces that would suggest the existence of an international armed conflict in the context of armed hostilities in eastern Ukraine from 14 July 2014 at the latest, in parallel to the non-international armed conflict.

For the purpose of determining whether the otherwise non-international armed conflict could be actually international in character, the Office is also examining allegations that the Russian Federation has exercised overall control over armed groups in eastern Ukraine. The existence of a single international armed conflict in eastern Ukraine would entail the application of articles of the Rome Statute relevant to armed conflict of an international character for the relevant period. In conducting its analysis, the Office must assess whether the information available indicates that Russian authorities have provided support to the armed groups in the form of equipment, financing and personnel, and also whether they have generally directed or helped in planning actions of the armed groups in a manner that indicates they exercised genuine control over them. The Office is currently undertaking a detailed factual and legal analysis of the information available of relevance to this issue.

In turn, paragraphs 171 – 183 listed alleged crimes – essentially, crimes against humanity and war crimes – some of which could have been committed, or at least contributed to, by nationals of the Russian Federation (in particular, in Crimea but also, probably, in Eastern Ukraine). By virtue of Article 12(2)(a) of the Rome Statute, the ICC would have jurisdiction with respect to such crimes, since Ukraine granted the ICC jurisdiction with respect to crimes committed on its territory since 21 November 2013.

Hence, it is very likely that the purpose of bylaw № 361-rp is to shield Russian nationals from potential prosecutions at the ICC in the future and that this attempt is based on the assumption that the withdrawal of Russia’s signature under the Rome Statute should prevent the ICC Prosecutor from indicting Russian nationals for alleged crimes committed in Crimea and Eastern Ukraine. It appears that the official Russian position echoes that of the United States in 2002, when the US withdrew its own signature from the ICC Statute. In the words of a senior US diplomat, the legal consequences of that move were as follows:

It frees us from some of the obligations that are incurred by signature. When you sign you have an obligation not to take actions that would defeat the object or purpose of the treaty […]

Indeed, this statement by Mr Pierre-Richard Prosper is crucial, because it points to an important legal obligation that both the United States and the Russian Federation were under, before they withdrew their respective signatures from the ICC Statute. It is true that after a State withdraws its signature, it is henceforth free from any obligation under the treaty. However, it is submitted, it would be incorrect to suppose (as some commentators do) that the withdrawal of Russia’s signature should also retrospectively cancel the State’s interim obligation not to defeat the object and purpose of the Rome Statute, which existed from the time the Statute was signed on its behalf on 13 September 2000 until the issuance of bylaw № 361-rp on 16 November 2016. This obligation is autonomous, and its existence is not affected by the bylaw.

As Olivier Dörr points out, “the interim obligation set out [in] Art 18 is […] an autonomous obligation under general international law” (O. Dörr, K. Schmalenbach (eds.) Vienna Convention of the Law of Treaties: a Commentary, at p. 220), and hence it is not a moral or political but a legal obligation. A State becomes bound by this interim obligation, in the sense of Article 13 of the Draft Articles on Responsibility of States, at the moment it signs a treaty, and the obligation only ceases –with a prospective, not retrospective effect – at the moment the State withdraws its signature in accordance with Article 18(a) of the Vienna Convention on the Law of Treaties. Dörr explains this as follows (ibid., p. 227):

The interim obligation under lit a ends as soon as the State makes its intention clear not to become party to the treaty. Thus, the State itself is able, by aborting the process of concluding the treaty, to create a situation where the interim obligation can no longer be violated because it is no longer binding for that State.

Since States’ interim obligation under Article 18(a) of the Vienna Convention not to defeat the object and purpose of treaties they sign is legal in nature, it must of necessity be implied that States bear responsibility – in the sense of applicable international law – for breaches of the interim obligation. For the purpose of the case study under review, it is submitted that, during the period between 13 September 2000 and 16 November 2016, Russia was legally obliged not to carry out any acts conducive to the commission of “the most serious crimes of international concern, as referred to in [the Rome] Statute” (cf. Article 1 of the Statute). Notably, the Rome Statute does not contain any specific provisions setting out its object and purpose yet, any reasonable interpretation of the Statute should suggest that its object and purpose include not creating conditions for, and not otherwise facilitating or encouraging, the commission of such crimes. However, it may be concluded from the ICC Prosecutor’s report of 16 November 2016 that Russia potentially violated its obligation under Article 18 of the Vienna Convention on the Law of Treaties, in that it occupied Crimea and Sevastopol, at the latest on 26 February 2014, and started an international armed conflict against Ukraine, at the latest on 14 July 2014. Since none of the alleged crimes listed in paragraphs 171 – 183 of the ICC Prosecutor’s report could have been committed, were it not for Russia’s active role in making possible the contextual circumstances for their perpetration, the invocation of its responsibility appears very apposite.

Since the obligation under Article 18(a) of the Vienna Convention is one under general international law, responsibility for its breach should also arise under, and be governed by, general international law – that is, the law of States’ responsibility for internationally wrongful acts. Since the interim obligation not to defeat the object and purpose of the Rome Statute was in force for Russia, in the sense of Article 13 of the Draft Articles, during the period between 13 September 2000 and 16 November 2016, Russia’s responsibility for breaches of this obligation, which occurred during the same period, may be invoked in accordance with the Draft Articles. Dörr notes that the interim obligation “can only be invoked by States that have themselves signed or ratified the treaty in question” (p. 231). Ukraine did not yet formally ratify the Rome Statute but it lodged two declarations under Article 12(3) of the Rome Statute, and these declarations, it is submitted, may be taken as grounds not just for giving the ICC formal jurisdiction with respect to alleged crimes, in accordance with the Rome Statute, but also as ones for invoking Russia’s responsibility under Article 18(a) of the Vienna Convention.

Given the harsh tone of the MFA statement of 16 November 2016 quoted above, it is certain that Russia would deny the existence of any obligation under the Rome Statute on its part, if the ICC Prosecutor decided to proceed to the investigation stage. In particular, Russia would not be willing to transfer to the ICC any of its nationals for which a warrants of arrest are issued, or to otherwise cooperate with the Court. Yet, in the circumstances, Russia’s transfer of its indicted nationals to the ICC would not be a form of cooperation with the Court, which is an obligation of States Parties under the Rome Statute. Under general international law, it would be a form of satisfaction for the alleged breach of Russia’s interim obligation under Article 18(a) of the Vienna Convention on the Law of Treaties, in the sense of Article 37 of the Draft Articles on State Responsibility:

  1. The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation.
  2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality […]

 The International Law Commission’s Commentary to Article 37(2) reads that:

[t]he forms of satisfaction listed in the article are no more than examples. The appropriate form of satisfaction will depend on the circumstances and cannot be prescribed in advance […] Many possibilities exist, including due inquiry into the causes of an accident resulting in harm or injury, […] a trust fund to manage compensation payments in the interests of the beneficiaries, disciplinary or penal action against the individuals whose conduct caused the internationally wrongful act […].

Now that Russia’s active role in the occupation of Crimea and the armed conflict in Eastern Ukraine has been invoked not only unilaterally by Ukraine but also by the Parliamentary Assembly of the Council of Europe, and the Third Committee of the UN General Assembly, international expectations (and pressure) for Russia’s satisfaction – including in the form of transferring individuals wanted by the ICC to The Hague – would be high.

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Terry Washington says

November 21, 2016

One wonders how the Kremlin can seriously contend that the ICC is biased- inasmuch as just a couple of days ago it issued a report suggesting that US forces committed war crimes in Afghanistan including torture?!

Gleb Bogush says

November 21, 2016

Dear Sergey,
many thanks for your interesting and timely post.
Honestly I think you went too far on the effect of Article 18 VCLT. I am not persuaded by your suggestion that the ICC Statute imposes a separate legal obligation to prevent the ICC crimes on States (in a way, for instance the Genocide convention does). Not sure it is the case even with State Parties. Could you clarify your point there?
There is no dispute that all States, including Russia and US, must refrain from illegal use of force and committing acts of aggression. But in this case, there are much better legal avenues for invoking State responsibility.
Best wishes, Gleb

Sergey Sayapin says

November 22, 2016

Dear Gleb,

thank you very much for your feedback. I can only repeat here what I have already written on my FB page in response to your reaction. In the absence of a provision in the Rome Statute setting out its object and purpose, one can only infer them through interpretation - as I did. It appears to me that the prevention and repression of crimes under international law must be among the Statute's purposes (and, probably, even constitute its very object) - not least, due to the principle of complementarity. The ICC does not just establish a jurisdictional regime of its own. The Rome Statute presupposes, above all, that States should, on their own and in good faith, prosecute individuals for the commission of crimes under international law and, of necessity, prevent such crimes by taking legal, political and institutional measures. The ICC's own jurisdiction is thus a secondary phenomenon. Primary are States' own measures to be taken in the framework of their respective penal policies and dealing with crimes against international law. Hence my (hopefully, not unfounded) conclusion to the effect that the creation of circumstances conducive to the commission of crimes under international law defeats the object and purpose of the Rome Statute. Meanwhile, issues relative to the Court's jurisdiction are secondary and relevant only for States Parties to the Statute.

Nicolas Boeglin says

November 26, 2016

Dear Professor Sayapin

Many thanks for your note on this issue.

I firmly believe that US acted for other reasons, and that a comparison is maybe going too far.

When US "unsigned" the Rome Statute on May 6th, 2002, State Department had (among many other things) in mind the elaboration of the famous Bilateral Immunity Agreement (BIA), that where signed with more than 100 States around the world. The first ABI signed by US was with Israel, another State that immediately "unsigned" Rome Statute after US (on August 28, 2002).

I share with you and your colleagues of EJIL a modest note (in Spanish) on the same issue,but analysed from another perspective:

Sincerely yours

Nicolas Boeglin

Nick Notan says

November 26, 2016

This is indeed an interesting posting.

However, there are two contentions, which seem very strange to me.

The first is: "Yet, although the Ministry’s statement did not mention this, the true reason for Russia’s decisive move must have been the publication ...".

How has the author arrived at this conclusion? I thought, maybe Dr. Sayapin found the MFA's official explanation so wrong that he just felt compelled to search for other explanations? But in the posting I do not see any attempt to analyze the MFA's official statement for correctness. Then, why the urge to making up your own theory and presenting it as the only viable option? There is no foundation for this theory whatsover in the posting.

The second strange contention is: "Now that Russia’s active role ... has been invoked not only unilaterally by Ukraine but also by the Parliamentary Assembly of the Council of Europe, and the Third Committee of the UN General Assembly, international expectations (and pressure) for Russia’s satisfaction – including in the form of transferring individuals wanted by the ICC to The Hague – would be high."

Obviously, Russia does not care about the pressure regarding the Ukrainian question (and even bigger Syrian question). Actually, those structures, which tried to apply it, are already collapsing, like the EU, or seeking a new course, like the US. Hence, the pressure on Russia is subsiding rather than growing. Even Ms. Peters wrote a posting several days ago on how "China and Russia move from norm-takers to shapers of the international legal order".

Also, Russian Constitution prohibits transferring Russian citizens to other countries (the UK already used this fact for preventing a proper trial for Litvinenko murder). Thus, the transfers to Hague will not take place.

Actually, let's hope for the opposite, i.e. that certain individuals would be transferred from Hague to Russia. For example, those who are responsible for cluster bombing of Nis, as well as other crimes, in the course of aggression against Serbia in 1999, etc - what would be a proper venue for them? I think, if not Belgrade in Serbia, then Belgorod in Russia should apply.

Sergey Sayapin says

November 27, 2016

Dear Mr Boeglin,

Thank you very much for your feedback and article. I will read it with interest.

With best wishes,

Sergey Sayapin

Sergey Sayapin says

November 27, 2016

Mr Notan,

My first statement you have quoted is a supposition. It is apparent from the phrase "must have been" (not "is" or "was"). Yet, I believe this supposition is quite viable, since Russia's MFA issued its statement exactly two days after the publication of the ICC Prosecutor's report. Circumstantial grounds referred to in the statement have long been in existence - and yet, the statement was made only recently, and very quickly, following the ICC Prosecutor's report. My supposition was justified in that sense.

Regarding your second comment: Article 61(1) of Russia's Constitution prohibits the extradition of its nationals to a foreign State. Transferring a person to the ICC is technically not the same as extraditing him or her to a foreign State.


S. Sayapin

Nick Notan says

November 27, 2016

Dear Mr. Sayapin,

Thank you for your thought-provoking response.

I would like to draw your attention to the fact that the MFA statement included a specific reference to "the demarche of the African Union which has decided to develop measures on a coordinated withdrawal of African States from the Rome Statute". The referred activity of the African Union started in Junuary of 2016. Burdundi, South Africa and Gambia announced their decisions to leave the ICC only in the end of October 2016, i.e last month. Hence, apparently, your statement that "circumstantial grounds referred to in the statement have LONG been in existence" is wrong.

With regard to your mentioning of the time frame of "exactly two days after the publication of the ICC Prosecutor’s report", I do not know why it matters for you so much in the absence of any other evidence. There is nothing even "circumstantial" in it, since two is just a soulless number. Actually, it seems to be too small for any reasonable bureaucratic process. Please take into account that the decision-makeres and ministerial employees need some time, and the examples of Burdundi, South Africa and Gambia illustrate this pretty well.

However, I would be ready to agree with you on that the Prosecutor’s report could not reverse the Russia decision. Rather, it could only confirm to Russia that the ICC is prone to at least two factors listed in the MFA report, i.e. the lack of efficiency and the biased attitude.

With regard to Article 61(1) of Russia’s Constitution, it states "1. A citizen of the Russian Federation may not be deported from Russia or extradited to another State". Do you believe that this norm allows transferring a person to the ICC in the Hague, i.e. abroad, with respect to Russian citizens?

Sergey Sayapin says

November 28, 2016

Dear Mr Notan,

Thank you for this discussion. As you have pointed out, some members of the African Union announced their prospective withdrawal from the ICC in early 2016, and dispatched their respective communications to the UN Secretary-General in late 2016. To me, this ten-month period is LONG. Especially, if you compare it to the period of only two days between 14 and 16 November 2016, which have elapsed between the publication of the ICC Prosecutor's report and the withdrawal of Russia’s signature from the Rome Statute. But this is a matter of personal assessment. I maintain that Russia withdrew its signature from the Rome Statute when, and only when, the prospect of having Russian nationals prosecuted by the ICC became quite probable. No earlier, and no later.

Regarding your second point, both you and I understand that Russia would not be willing to transfer its nationals to The Hague - and my post is precisely about this. Yet, Article 61(1) of the Constitution should not be seen as a legal obstacle to such transfers, because it is about extradition of nationals to foreign States, not about transferring them to institutions of international criminal justice. I do not exclude, by the way, that Russia might soon amend Article 61(1), with a view to preventing the transfer of its nationals to the ICC.

Nick Notan says

November 28, 2016

Dear Mr. Sayapin,

Russia as well announced that it would reconsider its attitude to the ICC in January, 2016. Hence, the reconsideration process, to the dispatch of respective communications, took approximately the same time frame of several months for Russia as for the aforementioned African states.

With regard to Article 61(1), it is worth mentioning that some Russian authors, in contrast to you, saw it as an obstacle for transfers to the ICC. For example, Shatalova in "Расследование югоосетинского кризиса 2008 года в повестке Международного уголовного суда: риски для России" has referred to Толстых В.Л. and Ведерникова О.Н. Also, some authors mentioned other obstacles. Of course, it would be interesting to make the whole list of your pre-suppositions, but since now it is clear that the ICC will not be able to apply any substantial pressure on Russia for transferring those Russian citizens, I think this should be left to people more interested in very theoretical constructions.

Thank you for your responses.

Sergey Sayapin says

November 28, 2016

Dear Mr Notan,

I suggest to resume this discussion in a couple of years´ time. It is my (and not only my) hope that the ICC Prosecutor would launch a formal investigation of the situation in Ukraine, following this preliminary examination. Once the Prosecutor starts the investigation, not even the UN Security Council would be able to defer it, in the circumstances (this subject matter merits a discussion in its own right). Russia would certainly not cooperate with the Court, on (well-known) formal grounds, but overcoming relevant obstacles, through other avenues, should be a matter of time and legal and political skills.

It is crucial that justice be done for horrendous crimes, which were committed in Ukraine since 2014. Many - if not most - of those crimes would not have been committed without Russia´s direct or indirect support, and it would be ethically improper and legally incorrect to let them go unpunished.

At this, I will permit myself to close the discussion, and to thank you for your comments.

Nick Notan says

November 28, 2016

Dear Mr. Sayapin,

I completely agree with you that it is crucial that justice be done for horrendous crimes, which were committed in Ukraine since 2014.

However, I differ from you in that it is my firm opinion that most of those crimes were committed against the law-abiding population of Donbass and other south-eastern towns, like Odessa, by armed nationalist radicals, who grabbed the power in Kiev illegally and were assisted in that by the US, the EU and some of its member states.

In my opinion, in such a case, politically it is clear that various regions of Ukraine could secede from Ukraine, possibly with assistance of Russia, like Finland, Estonia, Latvia, Lithuania, with assistance of the armies of the UK and Germany, seceded from Russia when Bolsheviks grabbed the power in St. Petersburg in 1917 (and how the US seceded from the UK with assistance of France, Spain and Netherlands when the UK tried to continue "taxation without representation").

With regard to the ICC, possibly I will believe it if and when it holds accountable those who committed the attacks on Serbia, including cluster bombing of Nis by the Dutch air force, and attacks on other states, such as Iraq, Libya and Syria.

At the moment, I strongly suspect that the ICC may lack independence. If you remember the leaked telephone conversation between Ms. Nuland and Mr. Pyatt in which they were choosing who exactly of their puppets would lead the future putsch government, it included the following lines:

"Nuland: ... when I talked to Jeff Feltman this morning, he had a new name for the UN guy, Robert Serry, ... ?

Pyatt: Yeah I saw that.

Nuland: OK. He's now gotten both Serry and Ban Ki-moon to agree that Serry could come in Monday or Tuesday. So that would be great, I think, to help GLUE THIS THING and to have the UN help GLUE IT and, you know, [XXXX] the EU."

Hence, you see, the apparatus of any international organization can be compromised by the presence of some Serries gluing their things.

BTW, do you consider the acts of assisting the putsch and recognizing the putschists as a government to be among the horrendous crimes? For example, this is what Prof. Alfred de Zayas had to say about the issue: "

"Das ist ein Staatsstreich, ein Putsch, ein Coup d’état. Das hat keine Legitimität";

"Leider haben sich mehrere Staaten massiv in die Sache eingemischt, was auch gegen etliche völkerrechtliche Prinzipien versties.";

"Das abgehörte Gespräch der Vize-Ministerin Victoria Nuland mit dem amerikanischen Botschafter in der Ukraine illustrierte eloquent eine «Kultur der Einmischung» in die innere Angelegenheit anderer Staaten. Wenn die anderen Staaten das Recht der Ukraine auf Selbstbestimmung respektiert und die Verhandlungen allein den Ukrainern überlassen hätten, hätte sich das Ganze wahrscheinlich anders entwickelt."

"Bedauerlich ist, dass diese völkerrechtliche Vereinbarung von den unterzeichnenden Staaten nicht geschützt und nicht umgesetzt worden ist. Anstatt auf die Erfüllung der Vereinbarung abzustellen und den demokratisch gewählten Präsidenten zu unterstützen, haben die westlichen Staaten die Opposition anerkannt, die eben den Vertrag gebrochen hatte. Das ist eine sehr anormale Situation und stellt einen verheerenden Präzedenzfall von Interventionismus in die inneren Angelegenheiten eines unabhängigen Staates dar."

"Die Vereinbarung hätte gemäss Artikel 26 der Wiener Vertragsrechtskonvention von allen Seiten respektiert werden müssen. In erster Linie von jenen Staaten, die sich verpflichtet haben, wie Deutschland, Polen und Frankreich, aber auch von Janukowitsch und der Opposition."

(BTW, Yanukovych invitation to Russia may very well be judged as effective due to these violations of international law by the foreign states. While Ms. Bilkova wrote in her Crimea article, referring somehow ONLY to Tancredi that the new Ukrainian authorities " .... did not come to power in violation of international law" (and I think Mr. Marxsen one referred to her), as you can see, de Zayas, as well as Kohen, Baros, Janik, Faruqi, Klenner, Schachtschneider, Boyle, Doebbler, Mezyaev, and seemingly Quigley, and Mamlyuk, who are lawyers, and Mearsheimer, Walt and others from related fields other than law, indicated the opposite. And Prof. Ivan Katchanovski, originally from the Western Ukraine, directly states that some Maidan killings were an inside job, and thus seems to disprove Tancredi).

Finally, with regard to your suggested period of two more years till justice, I am afraid that we will need to wait longer. For example, there was a decision in Munich in 1938 which, inter alia, basically expelled president Benes from Czechoslovakia. He resigned, and the newly elected president Hacha signed an Protectorate / Association agreement with Germany in 1939. However, in 1942 Mr. Benes was again recognized as the president by some states, of course, without elections. The UK did this simply by repudiating the Munich agreement. As you probably know, Benes returned to Czechoslovakia in 1945.

Hence, since Yanukovych's case so far is very similar to Benes (and Crimea is similar to Zaolzie, but it was decided via the referendum), we may need to wait till about 2021.

Thank you very much for your posting and comments.