On September 6, 2018, Pre-Trial Chamber I of the International Criminal Court (ICC or Court) ruled by a majority—Judge Perrin de Brichambaut dissenting—that it has jurisdiction to hear cases concerning crimes that occurred only in part within the territory of a state party to the Rome Statute. In so ruling, the Court granted the ICC prosecutor's request to rule on jurisdiction and confirmed its territorial jurisdiction over the alleged deportation of Rohingya people from the territory of Myanmar (a state not party to the Rome Statute) to Bangladesh (a state party). The Court also affirmed unequivocally its objective international legal personality vis-à-vis non-party states and hinted strongly that the prosecutor should consider the possible prosecution of at least two additional crimes in connection with this situation.

The admissibility challenge of the defence in Katanga has raised complex issues of litigation in the light of the practice of self-referrals and existing ICC jurisprudence. This article examines the Katanga Trial Chamber decision and its consequences from this perspective. It focuses on three themes that are of particular relevance, since they have a direct impact on the functioning of the Court and its different organs: (i) the timing for a challenge of the admissibility of the case; (2) access to information related to admissibility; and (iii) the role of the defence.

Negotiators of the Rome Statute of the International Criminal Court (ICC) did not intend the Pre-Trial Chamber (PTC) to act as a de facto investigating judge; rather, their intent was that the PTC ensure that the Prosecutor act responsibly and within well-defined limits. Several opportunities have arisen in the Lubanga case before the ICC's PTC and the Appeals Chamber to examine the Prosecutor's duty and performance in disclosing documentary evidence and the identities of witnesses at the pre-trial stage. International criminal tribunals necessarily must bridge the evidentiary magnitude of atrocity crimes with a pragmatic focus on one person's role. The PTC judge should aggressively narrow the charges and focus the Prosecutor on the requirement of minimal evidence to meet the sufficiency standard for the remaining charges, direct the Prosecutor to share existing and emerging evidence with the accused in a timely manner and not wait until 30 days prior to confirmation hearing, and use statutory power to ensure timely non-disclosure requests and determinations.