Full text of the paper:
Proceedings of the Faculty of Law, Novi Sad
2025, vol. LIX no. 1, p. 23-56
working language: Serbian
Review paper
341.4:343.3/.7 341.645
doi:10.5937/zrpfns59-56602
Author:
Branislav Ristivojević
University of Novi Sad
Faculty of Law in Novi Sad
b.ristivojevic@pf.uns.ac.rs
ORCID ID: 0000-0003-2333-3521
Stefan Samardžić
University of Novi Sad
Faculty of Law in Novi Sad
s.samardzic@pf.uns.ac.rs
ORCID ID: 0000-0003-2870-5726
Summary:
In the paper, the authors refer to a recent phenomenon in international criminal justice, namely the attempt to organize a trial for the crime of aggression in the armed conflict in Ukraine.
Since at the moment there is not a single institution within the framework of international criminal justice that has the authority to judge this case, the expert public has generated several proposals. The authors analyze each of these proposals from a special point of view. At issue is the realization of the principle of legitimacy in the establishment of new judicial bodies or the organization of trials for aggression before existing courts. This is because the revival of this principle is far more important in international criminal law than in any domestic criminal law.
The conclusion drawn by the authors is that each of the proposed solutions is fraught with problems with legitimacy because none of them can satisfy the criteria that are commonly used in science to evaluate the realization of this principle. The most important criteria that the proposals do not meet are consistency and responsibility. Consistency in advocating for the realization of the ideal of one global international justice is necessary for each proposer to avoid the objection that, in fact, he is realizing some narrow, selfish and political interests with his proposal. In the majority of cases, the proponents are the states that not only committed aggression with impunity, but also promoted the principle of non-responsibility in all previous proposals to establish jurisdiction for the prosecution of this offense in international criminal justice, which unequivocally undermines the credibility of their proposals.
Finally, the authors offer their original proposal for solving this case. The solution is that, like all previous cases of aggression, it is resolved through direct political contact between the interested countries. Namely, this case of aggression will not end with the unconditional capitulation of one of the warring parties, which, as the history of the International Military Courts in Nuremberg and Tokyo teaches us, is a necessary precondition for the effective organization of the trial for this crime.
Keywords:
aggression, international criminal justice, international criminal court, ad hoc tribunal, hybrid tribunal, universal jurisdiction, legitimacy.