In the early morning of October 17, 2022, the city of Kyiv, Ukraine was awakened by a series of Russian drone strikes. This attack, resulting in loss of civilian life, destruction of homes and damage to basic infrastructure – which only compounded the loss of essential services in towns and villages – were just a glimpse into the larger context of injustice in the aggression of the Russian Federation against Ukraine which has since resulted in an estimated 7,710,924 Ukrainians have been displaced from their homes.
The October 17 drone strikes were sentenced as war crimes, as they indeed are. The principle of distinction – a fundamental principle of international humanitarian law (IHL) – prohibits attacks directed against non-military objectives. The destruction of the home would thus constitute a grave breach of the Geneva Conventions (Fourth Geneva Convention, art. 147) and the Additional protocol (art. 85 (3) and (4)) as well as a war crime under several provisions of the Rome Statute (for example, art. 8(2)(a)(iv) and art. 8(2 )(b)(ii)).
However, it is also necessary to consider the destruction of housing beyond a link of armed conflict. In accordance with the Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living and on the right to non-discrimination in this context (prepared by the authors of this article in their respective capacities)the deliberate violation of the right to housing, whether in Ukraine, Yemen, Syria or Palestine, can also be more broadly characterized as “domicide”.
Etymologically rooted in Latin terms house (house and caedo (kill), the crime of domicide refers not only to the deliberate destruction of the physical structures of dwellings, but also to the systematic violation.
Although the legal concept may be new, the detrimental impact of conflict on housing rights is not new. From the scorched earth orders of the German Armed Forces in Eastern Europe to the American leveling of Hiroshima and Nagasaki in World War II, to the more recent ongoing conflict in Myanmar. resulting in tens of thousands of homes destroyed, history shows that homes were targeted as a means and method of warfare. The violation of the right to housing in times of conflict is therefore not only systemic but systematic; not merely incidental but intentional.
But that does not mean either that domicide is limited to the theater of war. Housing rights can also be exercised very effectively in times of peace using demolition orders, confiscation or expropriation measures, for example. So domicide continues to this day, in war as in law.
In many ways, domicide is not just about lex ferenda (future law) and is in fact already prohibited and punished as an international crime in the lex lata (law in force). In addition to war crimes, the destruction of housing, committed as part of a widespread or systematic attack against a civilian population and leading to displacement, can be qualified as a crime against humanity of deportation or forced transfer of population (Statute of Rome, s 7(1) (d); see The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap SangICC-01/09-01/11, Decision on the confirmation of charges, 23 January 2012, para. 245). When the violation of the right to housing is part of a system of discrimination or an institutionalized regime of systematic oppression and domination of one racial group over another, it can also constitute crimes of persecution ( Rome Statute, arts 7(1)(h), 7(2)(g)) and apartheid, respectively (Rome Statute, arts 7(1)(j), 7(2)(h)) . Domicide may even fall under the residual category of “inhumane acts” (Rome Statute, Art. 7(1)(k)) where the violation of the right to housing is punished for the destruction of the home. in itself rather than the systematic discrimination that surrounds it or the displacement it has caused. Finally, the act of domicide can be punished as genocide when the destruction of housing is undertaken with the intention of destroying, in whole or in part, a national, ethnic, racial or religious group.
While the willful destruction of homes may already be prosecuted as a composite element of crimes against humanity, war crimes or the crime of genocide, consideration should be given to establishing domicide as a separate crime given the essential role of the institution of the home. Indeed, the interdependence, indivisibility and interdependence of human rights only show how the destruction of a house can trigger a domino effect that also compromises the enjoyment of other human rights, including the right to life; personal security; health; education; food; the water; sanitation; work; social Security; a clean, healthy and sustainable environment; protection against cruel, inhuman and degrading treatment; and child and family protection.
But domicide is also not related to the destruction of physical structures. Domicide is more than an intrusion on property rights, just as the destruction of houses is not only a violation of the right to adequate housing. A home embodies the fundamental right to live somewhere in safety, peace and dignity, and is essential for physiological and safety needs. A singular example of housing destruction can be a triggering event affecting a wide range of human rights. Depriving communities of access to livelihoods, water, sanitation, heat, energy or food per se can therefore also constitute the crime of domicide.
Notably, not all forms of property are equally protected under international law. While all non-military property generally already enjoys a level of protection in accordance with a civilian use logic under the IHL principle of distinction, buildings devoted to religion, education, art, scientific or charitable purposes, historical monuments, hospitals and places where the sick and injured are collected (“specially protected objects”) benefit from “reinforced protection”. What is initially qualified as “civilian” can lose its protected status when “by its nature, location, destination or use” it makes “an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances at the time, offers a definite military advantage” (Protocol I, art. 52(2)). Specially protected objectshowever, lose their immune status only in exceptional cases of unavoidable military necessity and only for the duration of that necessity.
Given the Maslowian needs that the house fulfills, there is no logical reason why it should not enjoy the same protections as places of worship or cultural heritage. The home is essential to the survival of any civilian population and must be equipped with reinforced protections such as specially protected objects.
By defining domicide as a crime in its own right, the international community would close protection gaps and move ever closer to ensuring that serious violations of economic, social and cultural rights, such as the right to housing appropriate, receive the same attention in the international criminal law community as any other gross violation of human rights. As with all international crimes, holding perpetrators of domicide to account will involve taking into account a complex web of factors, such as the deliberate destruction of homes, the rendering of homes uninhabitable, or any other systematic denial of housing in violation of international law.
Domicide must be investigated and prosecuted without discrimination, regardless of where it takes place and who is responsible for it. Time and time again, international justice mechanisms have been criticized for applying double standards or failing to deliver justice in a fully impartial manner. Indeed, the aggression of the Russian Federation against Ukraine has been met with unprecedented international condemnation and efforts to investigate and prosecute, including by the International Criminal Court. As admirable and necessary as they are, it is undeniable that such actions are sorely lacking in other humanitarian crises, such as in Afghanistan or Palestine – both of which have cases pending before the International Criminal Court for years without any results. tangible.
Double standards do not win favor and leave international law vulnerable to the criticism that justice is not blind, that rule is subject to whim and that some are indeed more equal than others. If the international legal order is truly synonymous with the rule of law, then it must be applied consistentlylest we allow inconsistencies to turn into hypocrisies, leaving international standards respected only in small touches but undermined overall.