As the Northern Hemisphere is gearing up for a strong winter, many houses in Ukraine will have no means to keep them warm. In fact, many do not even have a roof above their heads, let alone a heating system. As the civilians in Ukraine are fighting for survival, rampant destruction of their homes may be the last of their concerns. However, the International Community have noticed how the destruction of homes and damage to essential infrastructure must go beyond being a nexus for armed conflict and constitute a ‘war crime’ under International Criminal Law. They call it, that is, the deliberate destruction of housing and infrastructure, ‘domicide’. While the term ‘domicide’ may be recent, but traces of intentional acts of destruction can be traced back aeons. From the bombing of Nagasaki and Hiroshima to the current bombing in Kyiv. Giving legal backing to ‘domicide’ can have implications in the armed conflict happening all over the world, including Yemen, Syria or Afghanistan.
Customary International Law already prohibits attacks directed against non-military objectives under the Principle of Distinction. Similar provisions in the Geneva Conventions and the Rome Statute constitute war crimes. However, they are often prosecuted as composite elements of crimes against humanity, war crimes, or the crime of genocide. Even then, the caveat of losing its protection by an effective contribution to military action renders these laws often invalid. The current push for making ‘domicide’ a distinct crime under International Criminal Law could bring the violation to the limelight. But at this juncture, the international community is presented with the unique opportunity to develop ‘democide’ to protect not just the destruction of houses but also an intrusion into property rights because the deprivation of privacy and housing rights has implications on other human rights such as health, education, and sanitation, a few among many.
The case for ‘domicide.’
International law provides places of worship or cultural heritage special protection. They do not lose this even if by its nature, use, location, or purpose would result in “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”. One must revisit International law to afford the same enhanced protection to homes. Most people hold sentimental value to their homes (childhood homes, first homes) even if they fail to value religious monuments or historic locations. It deserves the same protection, if not more.
Similarly, distinguishing ‘domicide’ as a distinct violation of International could also throw light on the deliberate attacks against property and housing around the globe. The much-needed concern for Ukrainians fleeing their homes due to destruction has fueled the International community’s motive in recognizing ‘democide’; however, the concern seems limited to armed conflict in Ukraine. Destruction of housing, along with it other human rights, is a reality in many areas around the globe and most often perpetuated by State Actors. However, there has been minimal accountability arising from the same. Giving armed conflict worldwide the much-needed attention it deserves is a strong case for incorporating ‘domicide’ as a distinct offence under International Law.
The International Court of Justice or International Criminal Court can be crucial in transitioning ‘domicide’. The role of the ICTY and ICTR in the formulation of rape and other sexual offence as genocide has been one of the most significant contributions to International Criminal Law, and this later found its way to be codified in the Rome Statute. Similarly, in their judgments and advisory opinions, the International Courts must classify ‘domicide’ as a separate and distinct violation of the law. This could act as a catalyst for including domicide into the law when the Rome Statute is revisited. International Organizations and Stakeholder nation-states must also push for this amendment or additional protocol by submitting referrals to the Prosecutor of the International Criminal Court. A UN Special Rapporteur and Commission must be formulated to draft legislation to ban the practice of domicide.
As the Rome Statute has recently completed twenty years, it is time to revisit the treaty body to include advancement and rectifying the lacunas of the statute and identifying and including ‘domicide’ as a distinct crime under the Rome Statute along with Crimes against Humanity, Genocide, War Crimes and Crimes of Aggression. Recognition of Domicide is the future of International Criminal Law.
By The European Institute for International Law and International Relations.
