Bangladesh War Crimes Tribunal: step forward for the fight against impunity, leap back for the rights of the defense...

I had completely missed the fact that Bangladesh created this year a special Tribunal to prosecute the crimes committed during the 1971 war of independence against Pakistan. The Tribunal started functioning in March this year, at the same time as Bangladesh ratified the Rome Statute, and apparently issued its first arrest warrants this week.

One aspect that caught my attention is the denomination given in one article: "International Criminal Tribunal", and the fact that it was set up with the assistance of the UN. Are we therefore in the presence of a new hybrid Court? In fact, the denomination is not the official name of the court, and there was no formal agreement between the UN and the country, so it's a purely national tribunal.
[UPDATE: The confusion on the name of the tribunal is due to a mistake by the JURIST: ICT stands for "International Crimes Tribunal", not "International Criminal Tribunal". See ICTJ report issued July 30th]
[UPDATE: The JURIST has corrected the mistake]

Another interesting aspect is the applicable law, the 1973 International Crimes (Tribunals) Act, which was amended in 2009. As pointed out by Steven Kay at ICLB, it's an interesting and little known piece of post-Nuremberg and pre-UN war crimes tribunal legislation".

It gives the tribunal jurisdiction over crimes against humanity, genocide, crimes against peace, violations of the Geneva Conventions, and "any other crimes under international law", the last one raising obvious questions in respect to the principle of legality.

Apart from jurisdiction, I saw three other notable features of the procedure. 

The section on the rights of the accused is quite succinct. It reads as follows:

17. (1) During trial of an accused person he shall have the right to give any explanation relevant to the charge made against him.

[...]

(3) An accused person shall have the right to present evidence at the trial in support of his defence, and to cross-examine any witness called by the prosecution.

The accused basically has a right to defend himself against the charges. What a relief... and there is no mention of the presumption of innocence.

The section on evidence is also quite striking:

19. (1) A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.

[...]

(3) A Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. 

(4) A Tribunal shall take judicial notice of official governmental documents and reports of the United Nations and its subsidiary agencies or other international bodies including non-governmental organisations.

 At least, the Act is honest about its desire for expeditiousness. I'm just a little curious as to what "non-technical procedure" is... It sounds like a nice way of saying "absence of procedure"... Also, the scope of possible judicial notice is quite wide, to say the least. The Bangladesh Government is well know for its spotless and impartial record in reporting, and the UN and NGOs always get it right. Why not just take judicial notice of the accused's guilt (everybody probably knows he's guilty) and not have a trial at all...

Finally, in terms of judgment and sentence (Article 20), there is no mention of the burden of proof for conviction and the Act provides for the application of the death penalty.

Once again, the rights to a fair trial take a back seat to the fight against impunity, despite the legitimacy of the latter depending in large part on the respect of the former. In this case, the UN and NGOs should distance themselves from this endeavor (I've done a rapid search on google, but failed to find any condemnation. If anybody cares to point me towards them if they exist? to be fair, a HRW report does call for respect of the rights of the defense and non-application of the death penalty) which appears to be a mockery of justice.

Just to be clear, I'm not suggesting that Bangladesh can't do want it wants. If that is what the Bangladesh population want, fair enough. But the international community cannot and should not officially support it.

[UPDATE: The Criminal Law Forum has a Special Issue on the Bangladesh Tribunal this month]

[UPDATE: I was using the version of the Act before the 2009 amendments (i've updated the link to the law with the correct version now). The parts I analyse are however unchanged. But to be fair and comprehensive, I should point out that they did add a new provision which states that:

(2A) The Tribunal shall be independent in the exercise of its judicial functions and shall ensure fair trial.

And to think that I was doubting that in light of the rest of the Act... I'm totally reassured now...]

Partial retrial ordered in Haradinaj

The ICTY Appeals Chamber just released its Judgment in the Haradinaj, Balaj and Brahimaj case. The Trial Chamber, in its April 2008 Judgment had acquitted the first two, and convicted the third for two counts of torture. The Appeals Chamber decided, with the President Judge Robinson dissenting, to partially quash the two acquittals and order a partial re-trial, because:

49. [...] the Trial Chamber failed to take sufficient steps to counter the witness intimidation that permeated the trial and, in particular, to facilitate the Prosecution’s requests to secure the testimony of Kabashi and the other witness. Given the potential importance of these witnesses to the Prosecution’s case, the Appeals Chamber finds that, in the context of this case [of systematic witness intimidation], the error undermined the fairness of the proceedings as guaranteed by the Statute and Rules and resulted in a miscarriage of justice.

Several comments about this decision.

For one, the basis for the motion by the Prosecutor was a "breach of the Prosecution's right to a fair trial". But since when does a Prosecutor have fair trial rights? He's an organ of the judicial system. Fair Trial rights exist to protect the defendants in their relation with the judiciary, not one organ of the judiciary against another organ of the judiciary. As Patrick Robinson puts it in his dissenting opinion:

17. By virtue of the burden placed on the Prosecution to prove the guilt of the accused person beyond reasonable doubt, the position of the Prosecution is in many ways different from the position of the accused person. Thus, the Prosecution has duties, which the Defence does not have, and the Defence has rights, which the Prosecution does not have. Properly analysed, the relationship between the Prosecution and Defence is not symmetrical; it is, because of the aforementioned burden, asymmetrical.

This is yet another example of a misapplication of human rights principles due to the decontextualisation of the reason of their existence and therefore a complete misunderstanding of their ethos and telos. In a similar fashion, the ICC Prosecutor had claimed a "right of appeal" when leave to appeal had been refused in the early witness participation decisions in the DRC situations. The Appeals Chamber at the time had rejected the motion.
It should be pointed out, however, that in the course of its reasoning, the Chamber does not really take up this idea of "prosecution fair trial rights". It does so once:

46. this decision again inappropriately prioritised logistical considerations over the Prosecution’s right to a fair trial.

[UPDATE: The Chamber issued on 23 July a corrigendum where it says that in paragraph 46, it meant to say "fairness of the proceedings" and that the mistake is due to a "clerical error". Blame it on the clerks... I'm sure that explains Tadic as well...]

but refers more generally to the "fairness of the proceedings", as illustrated by the above quoted passage. This is far less controversial, and shows that the issue could have been solved without opening the can of worms of Prosecution rights. And it therefore begs the question of why the Prosecution framed the question in this way in the first place. One worrying conclusion is that the OTP (and the Chamber when it picks up on it that one time) didn't see the semantic difference between "interests" (which the Prosecutor has), "rights" (which the Prosecutor doesn't have) and "the fairness of the proceedings" (as a general principle of good administration of justice). You would expect professional jurists to know that words have a meaning...

The Appeals Chamber missed an opportunity to explicitly reject the Prosecutor's reasoning. What it does here is a little more confusing, because it agrees with the Prosecutor, but doesn't clearly indicate that it is so doing on a different (and more accurate) reasoning, as you generally see in decisions. [Reading the judgment too fast the first time around, I actually got confused and, in the absence of a clear rejection of the OTP's reasoning, attributed the Prosecution argument to the Appeals Chamber. Thank you to my anonymous commentator for setting the record straight! And in my defense, the Chamber does refer to "Prosecution fair trial rights" once and Robinson himself must have considered the majority decision unclear, because he takes upon himself to clarify the situation.]

A problematic aspect is the standard of review. Given that the Trial Chamber was exercising a discretionary power, it has a certain leeway in its decision-making which in turn usually means that the Appeals Chamber only interferes when there is an obvious misuse of discretion. However, what the Appeals Chamber does here is substitute what it would have done if it had been the Trial Chamber. This is beyond the scope of the function of the Appeals Chamber, as highlighted in Judge Robinson's dissent:

7. The question of how many extensions to grant, whether one, two, or one hundred, or whether to stay or adjourn the proceedings, relates to the detailed day-to-day management of the case and is a matter best determined by the Trial Chamber in light of all the relevant circumstances. This is not a judgement for the Appeals Chamber to make. I would have granted more than three extensions or adjourned or stayed the proceedings, and the Majority itself might have done the same, but that is irrelevant. For it is not the appellate function to determine the sufficiency of the extensions granted by the Trial Chamber absent a clear indication of an abuse of the Trial Chamber’s discretion. And were we to do so, we would simply be substituting our own exercise of discretion for that of the Trial Chamber without any proper basis.

In effect, it appears from the Judgment that the Trial Chamber did in fact take into account the circumstances of the case and the importance of the witnesses by granting three consecutive extensions to the Prosecutor in order to allow him to secure witness testimony, so clearly, on the face of it, it did take into account relevant factors for the exercise of its discretion.
More generally, given the length of proceedings at the ICTY, the idea that the Prosecutor is not given enough time seems slightly puzzling. In this case, the indictments were issued in March 2005 (so presumably, the investigation had already been going on for a while), it took 2 years for the trial to begin in March 2007, and it lasted about 10 months, until January 2008. Even accounting for the specific difficulties of international investigations in difficult circumstances, you'd expect the Prosecutor to have had enough time to prepare a good case in that time and that its solidity would not depend on a last minute hiccup with a couple of witnesses... and even in this event, there comes a moment when it is legitimate for a Trial Chamber to move the proceedings forward in the interests of the defendants and in light of the right to be judged without undue delay. In the absence of proof of witness intimidation or tampering, at some reasonable point in time, the Defendant should not bear the consequences of the Prosecution's failure to secure sufficient evidence for a conviction.

A final general comment. Once again, we have a dissenting opinion which seems to make more sense than the majority decision. I'm not familiar enough with all the case-law of the tribunal to claim that dissenters always get it right, but my empirical experience is that I generally agree with the dissents (Schomburg on JCE, Pocar on reversal of acquitals). I think it might have to do with the fact that once a judge has taken the step towards dissent, he frees himself of the shackles of the internal politics of consensus which leads to sometimes inconsistently argued collective decisions, as illustrated in the present case, whereas dissenting opinions will have more chances of being intellectually consistent, and therefore make more sense. Any thoughts on that?

Another Fair Trial issue for today: Sljivancanin Appeals Judgment to be revised

In one of the ongoing sagas of this blog, and on a day apparently dedicated to fair trial issues (see previous post), the Appeals Chamber of the ICTY issued a decision today granting the motion to review of the Appeals Judgment in the Slivancanin case. The Judgment had controversially added, with two judges dissenting, a new conviction for aiding and abetting murder as a violation of the laws and customs of war. As I commented in the past, a first request for review for initially rejected. However, Counsel made a new motion based on the existence of new evidence, which was heard early June. It is this new fact as defined by article 26 of the Statute that compels the Chamber to allow the possible revision of the Judgment. 

The new fact, which is witness evidence that the accused did not in fact express the mens rea for the crime in a conversation, contrary to what had been found by the Appeals Chamber. In accepting this, the Chamber finds that (p. 4):

Although the Panic New Fact was discoverable through due diligence by Sljivančanin’s counsel, review of the Mrksic and Sljivančanin Appeal Judgement is necessary because the impact of the Panic New Fact, if proved, is such that to ignore it would lead to a miscarriage of justice.

This is of course perfectly reasonable... but is a little ironic given the way the case unfolded. Indeed, the Trial Chamber had drawn no conclusion from the conversation between Mrksic and Sljivancanin under consideration. It was only the Appeals Chamber which inferred from the conversation that Mrkšić must have told Šljivančanin that he had withdrawn the “JNA” protection from the prisoners of war held at Ovčara, subsequently "relied on these findings to conclude that Sljivančanin possessed the mens rea for aiding and abetting murder as a violation of the laws or customs of war" (p. 3). How could the defense be expected to provide evidence on an event that the Trial Chamber had not even found as being relevant? It is only with the Appeals Judgment, where the judges are basically reviewing evidence as if they were the trial chamber, that the Defense can actually know what evidence it has to contest. That's hardly compliant with fair trial rights!

The granting of the motion is obviously a step in the right direction for making sure those rights are respected, but it doesn't remedy the profound flaw of a process which allows the Appeals Chamber to de facto review evidence as a Trial Chamber would and reverse acquittals without any possible appeal from the new conviction in clear contradiction with human rights standards.

When is a "Fair Trial" really a "Fair Trial" ?

Commenting on a recent decision by PTC I at the ICC, William Schabas invites comments on the powers of the Chamber in relation to media statements by members of the OTP. In a nuthsell:

The Chamber chastised Beatrice le Frapper du Hellen, who is a senior official in the Office of the Prosecutor, for remarks that she made in an interview with the lubangatrial.org blog.
The Chamber referred to the fact that much of the Lubanga trial has not been open to the public.Accordingly, the public needs to be able to trust the published statements of those involved in the case, as reflecting, in a suitably balanced way, the evidence that has been heard and the decisions that have been made. It is important that in media statements there is a clear and accurate description as to whether issues that are reported have been decided or are still unresolved. Most importantly, and as a matter of professional ethics a party to proceedings is expected not to misrepresent the evidence, to misdescribe the functions of the parties or the Chamber, or to suggest or imply without proper foundation that anyone in the case, including the accused, has misbehaved.
The Chamber said that Beatrice le Frapper du Hellen had not abided by these principles.'in a manner that is prejudicial to the ongoing proceedings (in the sense that they tend to prejudice the public's understanding of the trial), which tends to bring the Court into disrepute'. It said it would take no further action than to express 'the strongest disapproval of the content of this interview' but warned that 'if objectionable public statements of this kind are repeated the Chamber will not hesitate to take appropriate action against the party responsible'.

And the problem as identified by Professor Schabas is as follows:

This issue is not expressly regulated by the Rome Statute or the Rules of Procedure and Evidence, and we may well ask on what the Trial Chamber might base its authority to 'take appropriate action' in the case of 'objectionable public statements'. This is part of a larger issue that is looming with respect to the implied or inherent powers of the judges at the Court. In last week's decision on the stay in Lubanga, the Trial Chamber seemed to think it had the power to order the Prosecutor to do certain things, such as reveal names of 'intermediaries'. But does it really have such a power? I think that its authority to stay proceedings in the event of a flagrant denial of the right to a fair trial cannot be questioned, and to that extent the decision certainly has a legal basis. But that is because the Chamber controls the trial itself. But can it make orders, and sanction people, for activity outside of the courtroom? Where does this power come from? And if it exists, where does it end? Should I, as an ICC-obsessed blogger, start to worry that I might too be subject to 'appropriate action' if I make an 'objectionable public statement'? I am inclined to think that it could stay the proceedings if a third party - such as myself - made an 'objectionable public statement' that drastically compromised the fairness of the trial itself, but that it can do no more than that.

On principle, I don't find it shocking that within its powers to ensure that fair trial requirements are met, a Chamber could exercise control over the conduct of the parties, in, and out of court. However, the key issue here, before dealing with the exact scope of that control, is what do we mean by "fair trial"? In my opinion, any conduct should affect "fair trial" in a strict procedural interpretation. For example, if the OTP was paying defense witnesses not to testify, or using intermediaries that provide false evidence.
This being said, in this decision, I believe they have much too broad an approach to the notion of "fair trial". Fair trial is to be evaluated within the proceedings, not outside. This is not a trial by jury, where the the members of the jury might be influenced by unbalanced press reports. The Judges at the ICC are professionals that in theory should not be affected by what a party might say in the press. The "public's understanding of the trial" is not a component of "fair trial". Indeed, whether the general public gets a correct picture of the proceedings (whatever that means... given that perceptions of a trial will always vary depending on the viewer's original bias) is none of the judges' business, even if from a broader perspective, one can only wish that fair reports of the trial be available to the public.

With this in mind, I don't see anything that affects the fair trial of Lubanga in the interview given. Of course the OTP is going to say that its witnesses are reliable, if not it wouldn't have chosen them in the first place. For similar reasons, it is not surprising that the OTP will express trust towards its intermediaries. It is the opposite that would be astonishing. And there's nothing shocking in the OTP expressing its belief that Lubanga is guilty, if not they wouldn't have initiated the case in the first place. Moreover, nothing in those statements undermine the power of the Chamber to effectively determine whether the the witnesses are reliable, the intermediaries trustworthy and Lubanga innocent or guilty. Each one is within his institutional role.
This doesn't mean that one cannot regret the rhetorical shortcuts adopted by OTP members, most notably Mr. Ocampo (recall when he compared Bashir reelection to Hitler's election...). These statements are certainly careless, inappropriate and possibly give a warped image of the ICC, but they are not strictly speaking fair trial issues. If made in Court, these statements could be questioned by the bench, based on basic principles of civility, rather than fair trial requirements. This is what happened in Sierra Leone where David Crane was chastised for referring to "Dante's inferno" and the "hounds of hell" in one of his opening statements.
As for third parties, given my strict approach to fair trial, I do not believe that the critical blog musings of William Schabas or myself could constitute a violation of fair trial requirements and therefore taken into account for a stay of proceedings. If not, all academic or NGO activity on an ongoing case should come to a stop until the verdict... More generally, given the global media exposure of these trials, having such a broad approach to fair trial as seems to be adopted by the Trial Chamber, would mean that no defendant in an international criminal court could be said to be able to get a fair trial because they are nearly always portrayed as guilty in the press, in clear violation of the presumption of innocence...

In relation to the exact powers of the Chamber if there is a violation of fair trial requirements, I don't think there is a general rule. It depends on the nature of the violation. For example, in the case of the intermediaries, I believe there is indeed a case to be made that the Chamber has power to order the OTP to provide the names, given its general powers in insuring disclosure of relevant materials for the adequate preparation of the defense case. For others conducts not covered by explicit powers of the Chambers, I think that the only power would indeed be a stay of proceedings until the conduct stops. Disciplinary measures could only be taken by the Chamber in the specific case of the offences against the administration of justice listed in Article 70 of the Statute. In other cases, another body, such as the Presidency or the ASP, would be competent to deal with orders and sanctions. As for statements, given my strict approach to fair trial, I think they would rarely constitute a violation of that right in the first place, but if they did, a stay of proceedings would equally be the only available tool for the Chamber.

Guest Post: in Favour of Trials in Absentia in International Tribunals

I have long had conversations with people about the issue of trials in absentia and have generally encountered scepticism. This question arose again recently (if indirectly) in the Karadzic decision to appoint standby counsel for the defendant should he decide to continue to "obstruct the proceedings" and prompts me to share some views on the matter.

I would like to point out from the start that I'm not defending that trials in abstentia are a perfect solution or even generally preferable to having trials in the presence of the accused. That would be preposterous. Of course the rights of the defence will be better protected (at least in theory) with the accused present. What I'm arguing is that the practice should not be excluded ab initio as a procedural tool in some situations. Most international institutions have excluded it and I think that's a mistake.

for one, I have alway been unconvinced by the Human Rights arguments for their total rejection. For Human Rights lawyers, the practice is considered contrary to fundamental human rights. I don't think so. None of the international Human Rights documents explicitely prevent this practice, to the best of my knoweldge. The European Court of Human Rights has in fact said that "Proceedings held in an accused’s absence are not in principle incompatible with the Convention", but imposed some strict conditions; such as the obligation to inform the accused, the right to appeal and be represented by counsel or the right to fresh assessement of the charges. Other international institutions have considered this issue and, although they show caution about the practice, they don't clearly ban it.
In fact, I think this is another case where the human rights hegemonic discourse is trying to wrap in universality what is a question of legal culture. Common law jurisdictions will generally be more unlikely to suppport this practice, given the importance of the adversarial procedure. On the contrary, the civil law inquisitorial system, where the judge has considerably more power in exercising control over the proceedings, makes the practice less objectionable.

Despite this, most international tribunals don't provide for trials in absentia. There is only a possibility of removing a defendant from the proceedings if there is too much disruption or if he has waived his right to be present. There are however two interesting exceptions to this trend. First of all, the Special Tribunal for Lebanon is the first international tribunal to explicitely allow trials in absentia. This is of course due to the influence of lebanese civil law on the drafting of the Statute and indicates that claims suggesting its total ban are not entirely justified. The second exception, which is not really one, but does relate to the issue, is the possibility in the Rome statute for the confirmation of charges hearings to be held in the absence of the accused, "when the person has: (a) Waived his or her right to be present; or (b) Fled or cannot be found and all reasonable steps have been taken to secure his or her appearance before the Court and to inform the person of the charges and that a hearing to confirm those charges will be held" (Article 61(2)). This allows the proceedings to continue despite the continued flight of the accused and is a symbolic step in holding "someone" accountable, and, from a political perspective, to put pressure on states to arrest the person under indictment.

Which brings us to our final considerations. Once established that trials in absentia are not in fact contrary to international law, under certain procedural conditions, why argue in their favour from a policy point of view? Those who are opposed to them usually put forward the argument that it will decredibilize the international tribunal by giving an impression of unfairness and bias agains the accused. That is certainly true in theory. It is considerably more satisfying for the image of justice in the eyes of the victims and the world community to actually see the defendant in the dock.
However, it is not a totally satisfying argument.Indeed, for one, even when the Defendant is present, the extreme politisation of these international trials anyway creates a manichean debate with supporters and detractors of international tribunals not budging from their position, whatever the reality. The practice itself of the tribunals, as illustrated by the recent Karadzic fiasco, shows that the perception of bias will exist irrespective of the presence of the accused.

Finally, I believe that there comes a tipping point where the interests of justice and efficiency outweigh the desired situation of having the defendant present. Indeed, once everything has been done to secure the presence of the accused and sufficient time given for his arrest, does the institution really lose more of its credibility by just waiting and showing the world how powerless it is, or by starting the trial anyway, with the required guidelines being satisfied? Given the extremely symbolic nature of international prosecutions, I'm not sure it would be more detrimental to the reputation of the ICC, for example, to start the trial of the remaining LRA leaders (provided the complementarity principle has been correctly applied), rather than have to announce one day that they've in fact all be killed by government forces (or, more likely, that they killed each other...) and that there will never be a trial.

There comes a moment where some process is probably preferable to no process at all. I don't provide here an answer to when exactly that might happen, but the option should at least be on the table.

PS: You might be wondering who the "guest", in the "guest post" is... in fact, there isn't any guest, I just thought it looked very professional, like all the other blogs who get some prestigious academic or practictionner to comment on various issues... that might happen in the future (please contact me should you wish to contribute), but given today's topic, I find it quite fitting to have a guest post in abstentia...

More drama at the ICTY: bring on the popcorn for the Karadzic trial!

In the latest episode of the trial, the ICTY Trial Chamber just decided to appoint counsel to Karadzic following a first week of trial where he chose not to attend the proceedings on account of not having had enough time to prepare... and to postpone the commencement of trial until march. Moreover:

In the present circumstances, considering the fundamental nature of the right to selfrepresentation, which cannot be diminished lightly, and in accordance with the principle of proportionality, the Trial Chamber finds it necessary to instruct the Registrar to appoint counsel, who will begin immediately to prepare him or herself to represent the interests of the Accused when the trial resumes, if that should be required. Notwithstanding the appointment of counsel for this specific purpose, the Accused will continue to represent himself, including by dealing with the day-to-day matters that arise, such as the filing of motions and responses to motions filed by the Prosecution, and further preparing himself for the trial.

the defendant will therefore continue to defend himself (even at the recommencement of trial), the counsel only coming in if there is further obstruction...

We won't go into the legal technicalities of the issues, dealt with elsewhere. Just a few comments.
If I'm undestanding this correctly, their refusal to allocate more time to the defendant led him to refusing to attend his trial, therefore crossing the judges who, to punish him, give me an extra four months for his appointed counsel to prepare for trial, while still allowing Karadzic to continue representing himself for the time-being, thus somewhat giving him what he asked for in the first place... makes sense.
Moreover, this does not really solve the issue of his presence at trial. The drafters of the ICTY Statute decided not to have trials in abstentia. One can argue the pros and cons of that (I would actually be in favour of having those... blame my French legal training... more on this some other time...). But that's the situation right now. Given that, contrary to the ICTR, the ICTY did not adopt a rule allowing it to proceed in the absence of the accused, I don't really see on what basis they would continue the trial even with an appointed counsel. The decision seems to suggest that the defendant might forfeit his right to be present by refusing to be present. This is the reasoning behind in abstentia trials and cannot be sustained here (argument in absurdum here, but if this is the case, let's apply it to Mladic and start his trial tomorrow). Karadzic did not say "go ahead guys, i can't be bothered attending". He is making a procedural statement (if a somewhat overdramatic one) on the fair conduct of proceedings. That is not the same as forfeiting his right to attend.
More generally, whatever the position one adopts on this issue, the chamber has put itself between a PR rock and a communications hard place. What kind of mixed message is it sending out, by trying to be tough, and then by threatening the defendant with what he asked for? On the other hand, this is a semantic way of sorts to save face. They couldn't really say "ok, you win this time, but be careful, we're watching you", which is in effect what they have done.

And now, bow your heads and let's have one minute silence for the completion strategy...