6.[…] Accordingly, the Appeals Chamber considers that, having found that the death of an appellant results in the termination of proceedings and given that no appeal judgement can be rendered with respect to Gvero, nothing can undermine the finality of the Trial Judgement as it concerns Gvero.[1] As a consequence, the Trial Judgement shall be considered final in relation to Gvero.

CONSIDERING further that Counsel have no standing in their own right in circumstances where the appellant has died and the appellate proceedings before the Tribunal have been terminated;

For a brief overview of the relevant provisions and legal precedents in national jurisdictions, see paras 11-12.

9. The Appeals Chamber notes that neither the Statute nor the Rules indicate whether the termination of the appellate proceedings has any impact on the finality of the trial judgement following the death of an appellant and prior to the issuance of an appeal judgement. The Appeals Chamber is further mindful of the fact that pursuant to Rule 102(A) of the Rules, the enforcement of the trial judgement shall be stayed as soon as notice of appeal is given and “until the decision on the appeal has been delivered”.[1] However, the Appeals Chamber has found that the death of the appellant results in the termination of the appeal proceedings; consequently, this provision is not applicable to the situation at hand.

13. […] [T]here is no general principle that is consistently followed in the majority of jurisdictions as to the finality of the trial judgement in the event that the proceedings are terminated following the death of an appellant. For this reason, as well as bearing in mind the specific realities of, and the particular procedures before, this Tribunal, the Appeals Chamber cannot discern any prevalent approach, let alone identify any rules of customary international law, that would be directly applicable to the situation at hand.

14. The Appeals Chamber considers that the approach followed in certain national jurisdictions, where convictions entered by a court of first instance are vacated following the death of an appellant, is not compatible with the essence of the appellate proceedings before this Tribunal. […]

15. Having found that the death of an appellant results in the termination of proceedings and given that no appeal judgement can be rendered in this case, nothing can undermine the finality of the Trial Judgement. As a consequence, the Trial Judgement shall be considered final.

17. Turning to the issue of retaining the body of evidence adduced to date on the record, the Appeals Chamber also finds that Karemera and Ngirumpatse have failed to demonstrate that the Trial Chamber committed a discernible error in this regard.[1] Although the Trial Chamber retained all the evidence on the record, it specifically clarified that in its deliberations it would “separate the evidence that relates only to Nzirorera and that which relates to a joint criminal enterprise or conspiracy or aiding and abetting amongst Nzirorera and others”.[2] In adopting this approach, it correctly recalled that “[t]here is clear statutory language and jurisprudence which emphasize the individual nature of criminal responsibility in this Tribunal [and that] [e]ven if Accused persons are joined together into one trial, this in no way diminishes the Prosecution’s burden to prove each element of each crime individually against each of the co-Accused.”[3] The Appeals Chamber does not find this “streamlined approach”[4] unreasonable.

18. Furthermore, the Appeals Chamber recalls that a similar approach was adopted in the Brðanin case before the ICTY, in which Momir Talić was severed from the case eight months after the trial started.[5] Not only did Talić’s name continue to appear in the indictment,[6] but the evidence already on the record was retained.[7] In the Brðanin Trial Judgement, the Trial Chamber noted that “[it] ha[d] taken into consideration the evidence given against the former co-accused Momir Talić, whose case was severed from that of the Accused and who subsequently passed away, as far as it [was] relevant to the case against the Accused.”[8] Accordingly, the Trial Chamber in that case followed the same approach proposed by the Trial Chamber in the present case.