Domestic Trials, Universal Crime

Abstract While international criminal courts were historically considered the cornerstone of the global system for prosecuting international crimes, the growing volume of cases brought on these grounds before national courts can no longer be ignored. As a result, many commentators argue that the future of international justice predominantly lies in the hands of national courts. This development raises critical questions about the universality of genocide and the extent to which national decisions conform to or depart from the international definition set by the 1948 Genocide Convention. Focusing on national practices in Belgium, France, Germany, and Lithuania, this article explores the dynamic relationship between the ‘universal’ (the international definition) and the ‘particular’ (domestic judicial approaches to genocide). The analysis begins by tracing the paradigm shift from international to national enforcement of the crime of genocide. It then examines key points of divergence between the international definition and national judicial interpretations. Particular attention is given to the definition of genocidal intent, as illustrated by German and Lithuanian jurisprudence, and to the requirement of a genocidal plan, which has been incorporated into French law but remains absent in Belgian legislation. Drawing on Mireille Delmas-Marty’s concept of pluralisme ordonné, this article argues that divergences in national approaches reflect the existence of a margin of appreciation granted to states in the interpretation of the crime of genocide. It ultimately questions these divergences in light of a shared normative framework, illustrated by three guiding principles: the peremptory nature of the prohibition of genocide, the principle of complementarity, and the principle of legality.