The Appeals Chamber listed numerous authorities from both the ICTY and the ICTR for its inherent power to reconsider its own interlocutory appeals decisions (para. 9):

The Appeals Chamber has confirmed in numerous cases its inherent power to reconsider its own interlocutory decisions in exceptional circumstances “if a clear error of reasoning has been demonstrated or if it is necessary to do so in order to prevent an injustice”.[1]

The Appeals Chamber recalled the general principles of reconsideration proceedings and mentioned that, in exceptional circumstances, it had an inherent power to reconsider a previous interlocutory decision if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice.

22. Pour ce qui est du réexamen, la Chambre d’appel rappelle que

the Appeals Chamber ordinarily treats its prior interlocutory decisions as binding in continued proceedings in the same case as to all issues definitively decided by those decisions. This principle prevents parties from endlessly relitigating the same issues, and is necessary to fulfil the very purpose of permitting interlocutory appeals: to allow certain issues to be finally resolved before proceedings continue on other issues.[1]

Ce nonobstant la Chambre d’appel dispose, dans des circonstances exceptionnelles, du pouvoir inhérent de réexaminer toute décision interlocutoire lorsqu’une erreur manifeste de raisonnement a été mise en évidence ou si la décision dont on sollicite le réexamen a donné lieu à une injustice[2].

126. The Appeals Chambers recalls that once a trial judgement is pronounced, any request for reconsideration of a decision taken within the framework of first instance proceedings must be raised through the notice of appeal and the appeal brief.[1] The Appeals Chamber therefore rejects the Prosecution’s argument that Ntahobali has improperly sought reconsideration of an interlocutory appeal decision through his appeal.

127. Under the settled jurisprudence of the Tribunal, the Appeals Chamber may reconsider a previous interlocutory decision under its inherent discretionary power to do so if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice.[2] The Appeals Chamber emphasises that the exercise of this reconsideration power is only designed to apply in exceptional circumstances.[3] Indeed, the Appeals Chamber recalls that reconsideration is an exception to the principle that prior interlocutory appeal decisions are binding in continued proceedings in the same case as to all issues definitively decided by those decisions.[4] This principle prevents parties from endlessly relitigating the same issues, and is necessary to fulfil the very purpose of permitting interlocutory appeals: to allow certain issues to be finally resolved before proceedings continue on other issues.[5]

128. The Appeals Chamber notes that Ntahobali waited nearly a decade, and until after the completion of the trial proceedings, to seek reconsideration of the Appeal Decision on Continuation of Trial through his appeal against the Trial Judgement, without explaining why he did not seek reconsideration earlier. The Appeals Chamber stresses that a “matter must be raised with the court at the time the problem is perceived in order to enable the problem to be remedied”.[6] As held in the Čelebići Appeal Judgement, “the requirement that the issue must have been raised during the proceedings is not simply an application of a formal doctrine of waiver, but a matter indispensable to the grant of fair and appropriate relief.”[7] By failing to raise this matter before the Appeals Chamber prior to the completion of the trial proceedings, Ntahobali deprived the Appeals Chamber of the opportunity to re-examine whether it was in the interests of justice to continue the trial with a substitute judge.

129. In these circumstances, the Appeals Chamber declines to exercise its discretionary power to consider Ntahobali’s request for reconsideration of the Appeal Decision on Continuation of Trial. Accordingly Ntahobali’s request for reconsideration is dismissed.

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RECALLING that the Appeals Chamber treats its pre-appeal and interlocutory decisions as binding in ongoing proceedings as to all issues decided therein, and that, in the interests of justice, this principle forecloses re-litigation of such issues;[1]

OBSERVING that the only exception to this principle is where the Appeals Chamber may reconsider its prior decision;[2]

CONSIDERING, therefore, that there is no legal basis for appealing an order or a decision of the Appeals Chamber;

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FINDING, therefore that, Mladić’s request for certification to appeal the Impugned Decision to be without merit;