The relationship between international law and morality: The claims of offenders

The assertion that international law must coincide with morality has traditionally focused on the claims of victims. According to this argument, protecting and vindicating the victims of violations of moral norms requires legalizing these norms. This dissertation advances the argument for close relationship between international law and morality from a different perspective -- that of offenders. I argue that not only victims, but also offenders, have strong claims that the norms of international law coincide with morality. This work presents such claims.;This dissertation consists of three articles. Two of the articles concern the manner in which the relationship between international law and morality bears on the content of international humanitarian criminal norms. The third article concerns the manner in which this relationship determines which body of international law (the law of war, human rights law, or a third legal model) applies to the conduct of a state's security forces. Both inquiries concern the claims of offenders.;In the first two articles I discuss the appropriate reach of international criminal law. I point to fairness, liberty and democracy considerations that require confining international criminal prohibitions to the enforcement of fundamental, self-evident moral norms. I present guidelines for the application of this moral gravity requirement, and apply those guidelines to two prohibitions contained in Rome Statute of the International Criminal Court: the provision prohibiting an occupant from settling its own population in the territory it occupies, and the provision prohibiting an occupant from demolishing the homes of terrorists, often populated by innocent residents as well, as a deterrent measure. I show that these prohibitions are inconsistent with the moral gravity requirement in international criminal law, and should therefore be narrowed.;In the third article I examine the applicability of the law of war to large-scale hostilities between an occupant and guerrilla forces. I show that the rationales most often invoked in support of applying the law of war generally do not apply to large-scale hostilities between an occupant and guerrilla forces. I then proceed to develop an alternative rationale for applying the law of war to such hostilities. This rationale concerns the claim of individual soldiers that the scope of application of the law of war fully coincides with the moral reality of war. My analysis suggests that relying on the said rationale as the main basis for applying the law of war entails strict limitations on the law of war's field of application. Finally, my article argues that the law of war governs within its field of application in an unqualified manner. The Article thus takes issue with the approach that advocates the adoption of a normative middle ground between the law of war and international human rights law. Here too, the claims of individual soldiers that the applicable legal norms must fully coincide with the moral reality of war play an important role in my argument.