The importance of being earnest: the timeliness of the challenge to admissibility in Katanga

This commentary argues that the Trial Chamber in Katanga adopted an erroneous interpretation of the Statute of the International Criminal Court by limiting the grounds to ne bis in idem on which a challenge to admissibility can be brought after the confirmation of charges. The Trial Chamber held that the ‘commencement of trial’ under Article 19(4) is the moment of the constitution of the Trial Chamber, rather than the making of opening statements. This commentary re-examines the legal reasoning of the Court and advocates a different reading. It also suggests that the Chamber has failed to strike a proper balance between the possibility of making challenges to admissibility and the smooth and efficient working of the proceedings, which compromises the long-term legitimacy of the institution and the interests of justice.