On the early morning of Oct. 17, 2022, the city of Kyiv, Ukraine, was awakened by a spate of Russian drone strikes. This attack, resulting in the loss of civilian life, destruction of homes, and damage to basic infrastructure – which only further resulted in the loss of essential services in towns and villages – was but a glimpse into the broader context of injustice in the Russian Federation’s aggression against Ukraine that has since resulted in an estimated 7,710,924 Ukrainians being displaced from their homes.
The Oct. 17 drone strikes have been condemned as war crimes, as indeed they 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 Protocol Additional thereto (art. 85 (3) and (4)) as well as a war crime under several provisions of the Rome Statute (e.g. art. 8(2)(a)(iv) and art. 8(2)(b)(ii)).
Yet there is likewise a need to view housing destructions beyond an armed conflict nexus. In line 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 housing rights, whether in Ukraine, Yemen, Syria, or Palestine, may also be more broadly framed as “domicide.”
Etymologically rooted in the Latin terms domus (home) and caedo (to kill), the crime of domicide refers not only to the deliberate destruction of the physical structures of homes, but also to the systematic violation of housing rights.
Though the legal concept may be novel, the harmful impact of conflict on housing rights is nothing new. From the German armed forces’ scorched-earth orders in Eastern Europe to the U.S. levelling of Hiroshima and Nagasaki during World War II, to the more recent ongoing conflict in Myanmar resulting in tens of thousands of houses destroyed, history shows that homes have been targeted as a means and method of war. The violation of housing rights in times of conflict is thus not only systemic but systematic; not simply incidental but intended.
Yet neither is this to say that domicide is limited to the theatre of war. Housing rights can also be very effectively carried out in peacetime as well using demolition orders, confiscation, or expropriation measures, for example. Domicide thus continues to this day, in warfare and lawfare alike.
In many ways, domicide is not only a matter of lex ferenda (future law) and is in fact already prohibited and punished as an international crime in the lex lata (current law). In addition to war crimes, housing destructions, made as part of a widespread or systematic attack against a civilian population and resulting in displacement may qualify as the crime against humanity of deportation or forcible transfer of population (Rome Statute, art. 7(1)(d); cf. The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/09-01/11, Decision on Confirmation of Charges, Jan. 23, 2012, para. 245). When the housing right violation is effected as part of a system of discrimination or as part of an institutionalized regime of systematic oppression and domination by one racial group over another, it may also constitute the crimes of persecution (Rome Statute, art. 7(1)(h), 7(2)(g)) and apartheid, respectively (Rome Statute, art. 7(1)(j), 7(2)(h)). Domicide may even fall within the residual category of “inhumane acts” (Rome Statute, art. 7(1)(k)) in those instances when the housing right violation is punished for the destruction of the home per se rather than the systematic discrimination surrounding it or the displacement it caused. Finally, the act of domicide may be punished as genocide when the housing destruction is undertaken with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.
While the deliberate 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 distinct crime given the essential role of the institution of home. Indeed, the interdependence, indivisibility, and interrelatedness of human rights only speak to how the destruction of a home may set off a domino effect impairing the enjoyment of other human rights as well, including the rights to life; security of the person; health; education; food; water; sanitation; work; social security; a clean, healthy, and sustainable environment; protection against cruel, inhumane, and degrading treatment; and the protection of the child and family.
But neither is domicide hinged on the destruction of physical structures. Domicide is more than an intrusion into property rights, much in the same way that the destruction of homes is not only a violation of the right to adequate housing. A home embodies the fundamental right to live somewhere in security, peace, and dignity, and is essential to both physiological and safety needs. A singular instance of housing destruction may be a trigger event effecting a wide array of human rights. Depriving communities of access to livelihoods, water, sanitation, heating, energy, or food in and of themselves may thus equally constitute the crime of domicide.
Notably, not all forms of property are protected equally under international law. While all non-military objects are already generally afforded a level of protection pursuant to a civilian-use rationale under the IHL principle of distinction, buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected (“specially protected objects”) are given an “enhanced protection.” What is initially characterized as “civilian” may lose its protected status when “by its nature, location, purpose or use” it makes “an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage” (Protocol I, art. 52(2)). Specially protected objects, on the other hand, lose their immune status only in exceptional cases of unavoidable military necessity and only for such time as that necessity continues.
Given the Maslowian needs the home fulfills, there is no logical reason why it should not be provided the same protections as places of worship or cultural heritage. The home is indispensable to the survival of any civilian population and should be supplied with enhanced protections similar to specially protected objects.
By defining domicide as a crime in its own standing, 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 adequate housing, receive the same attention in international criminal law as any other gross violations of human rights. Much like all international crimes, holding perpetrators of domicide to account will involve considering a complex network of factors, such as the deliberate destruction of homes, rendering 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 again, international justice mechanisms have been criticized for applying double standards or for being unable to serve justice in a fully impartial manner. Indeed, the aggression of the Russian Federation against Ukraine has been met by an unprecedented international condemnation and investigative and prosecutorial efforts, including by the International Criminal Court. As admirable and necessary as they are, there is no denying that such actions are blatantly missing in other humanitarian crises, such as in Afghanistan or Palestine – both of which have had cases pending before the International Criminal Court for years without any tangible outcome.
Double standards curry no favor and leave international law vulnerable to the critique that justice is not blind, that rule is subordinate to whim, and that some are indeed more equal than others. If the international legal order truly stands for a rule of law, then it must be enforced with consistency, lest we permit inconsistencies to bunch up into hypocrisies, leaving international standards fulfilled only in small patches but undermined in the big picture.