The Crime of “Domicide”
The UN Special Rapporteur on adequate housing Balakrishnan Rajagopal has shone a light on how massive violations of the right to adequate housing continue in unprecedented fashion during and after violent conflict. The attacking, bombing, shelling and other forms of demolishing civilian targets and the destruction of entire cities and villages. These violations also displace millions into homelessness despite the development of modern human rights. humanitarian and criminal law.
His most-recent report [AR] to the UN General Assembly, “The right to adequate housing during violent conflict,” focused on this persistent targeting of homes of a persistent practice of conflict, occupation and war. It analyses the legal, political and practical challenges to preventing, ending and responding to systematic and deliberate mass destruction of homes during violent conflict. It calls for recognizing such severe violations of international law as “domicide,” a distinct crime under international criminal law. The report concludes with a set of recommendations to prevent and eliminate the practice, as well as end impunity for such severe housing rights violations.
In a 27 October 2022 side event at the 77th General Assembly session, the Office of the High Commission for Human Rights and the Center for Human Rights & Global Justice (CHRGJ) at New York University Law School co-hosted Mr. Rajagopalan and four panelists to explore the proposition. With CHRGJ Professor of International Law José Alvarez moderating, panelists included Mr. Joseph Schechla, Coordinator, Housing and Land Rights Network, Habitat International Coalition; Ms. Bree Akesson, Wilfrid Laurier University, Faculty of Social Work and Social Justice & Community Engagement (SJCE); Chiara Torelli, Lead Explosive Violence Researcher at Action on Armed Violence.
For the newcomer to the term “domicide,” it could seem to be a pseudo word or made-up word. The debate to recognize the term in international criminal law is inspired and informed by the etymology of “genocide, which is the intentional destruction of a people—usually defined as an ethnic, national, racial, or religious group—in whole or in part. Polish jurist Raphael Lemkin coined the term in 1944, combining the Greek word γένος (people, or “race”) with the Latin suffix -caedo (act of killing).
The meaning“to kill” may not lend itself to usage in connection with inanimate objects and non-living things. However, if we look deeper into the etymology of the verb, we find that it has derivatives with related meanings such as “to cut,” “to hew,” “to tear,” “to strike” or “to beat.” In the broadest sense, democide entails striking where people live.
HIC-HLRN’s coordinator supported the proposition for this neologism would take its place in international criminal because of the need for greater specificity in legal terminology. Already, “forced evictions” [AR] and “population transfer” [AR] have been legally defined. They are points on a spectrum of gross violations and the most-serious crimes. Each term is distinct in its application. The Commission on Human Rights has affirmed in 1993 and 2004 that “forced eviction” is a gross violation of the human right to housing, among other human rights. It could be practiced against a single household, or group of households. The serious crime of population transfer involves a similar practice, but usually referring to only large-scale operations, involving push and pull factors with the discriminatory purpose and effect of demographic engineering.
Most commonly, population transfer takes place when and where an illicit power seeks to implant a compliant population, in order to acquire and permanently control territory. Population transfer crimes are cross-border in nature; however, the same prohibited practice may take place within a state’s territory. In which case, it is referred to as “demographic manipulation.” Population transfer crimes can be carried out by force and/or any combination of tactics and means, including coercive, incremental, incentivized and predicated on the enforcement of discriminatory law.
The destruction of homes could include lawfare, as long practiced against Palestinian Jerusalemites, for example, where violations of their housing and land rights involve draconian restrictions on their residency status in their own capital city. These old and new measures involve the separation of families, despite the International Law Commission determination that “the forcible transfer of members of a group, particularly when it involves the separation of family members, could also constitute genocide.” Short that application of the term “genocide,” this method also could be classified as a form of domicide.
However, domicide would refer to deliberate destruction of homes. In the post-WWII population transfer of Sudaten Germans, most of their homes were left standing after their inhabitants were forcible marched westward in supposed peacetime. However, in the 1947–48 ethnic cleansing of Palestine’s Nakba, Israeli forces demolished most of the 531 Palestinian villages, equivalent to roughly 156,000 homes, among other structures, often carpeting them over with non-indigenous forest plantings, in order to leave nothing for the refugees to return to. Those crimnnal actions would qualify as democide. Contrastingly, a similar ethnic-separation policy afflicts Cypriot families subject to population transfer since 1974, but, in many cases, their homes reamin—often empty—across the Green Line.
Outside the context of population transfer and genocide, domicide could be the appropriate term to describe the Bharatiya Janata Party’s current targeting of Muslim homes as a means of persecution in India, borrowing tactics applied elsewhere.. With objectives analogous to Israeli militias in the Nakba, the Myanmar army’s burning destruction of Rohingya villages would include domicide in the repertoire of its serious crimes.
The legal terms “forced eviction” and “population transfer” are well defined in international law. However, each is also distinct from “democide,” which is the violent or other forcible attack on the home; i.e., housing unit or residence and landed area where civilians live. It is different from the other examples in which the targeted homes and households remain intact.
Most of the homes of post-war Sudaten Germans were left standing after their inhabitants were forcible marched westward in supposed peacetime, and even the 531 Palestinian villages ethnically cleansed in 1947–48 and their roughly 156,000 homes, among other structures, remained until well after their depopulation, until the State of Israel and its apartheid-chartered parastatal institutions bulldozed and carpeted them over with non-indigenous forest plantings. The same ethnic separation policy afflicts Cypriot families subject to population transfer since 1974, while, in many cases, their homes still stand—often empty—across the Green Line.
“Democide,” on the other hand, is the very specific act of attacking civilian homes, including physical structures and their surroundings, most often in the context of violent conflict, occupation and/or declared war. Such acts may be via destructive means that also result in “forced eviction” at a wide scale, but that precise legal term and classification of a gross violation might understate a case of domicide.
Moreover, apart from population transfer, domicide could take place when the tactical objective is to unlawfully punish, persecute, dispossess and/or impoverish inhabitants, even without the purpose or effect of displacing or replacing them. Rather, domicide is a felonious act in and of itself that may relate to, but conceptually falls between already defined and prohibited forced eviction and population transfer crimes.
In the Nuremberg trials of Nazi defendants Alfred Jodl and Alfred Rosemberg, the former was convicted of crimes including the burning of Norwegian villages and the destruction of Polish villages and towns. Rosenberg was infamous for looting Jewish homes. Despite their qualification as domicide, the Nuremberg prosecutors were reduced to charging them with the rather unspecific war crime of “spoliation.” In the October 2022 ruling on the mass eviction and destruction of Maasai homes and lands in Tanzania, East Africa Court judges dismissed the case for lack of evidence of harm arising from the domicide.
Legal practitioners need more-precide terms and better understanding of democide as a crime in international—and domestic—law. As the Special Rapporteur has pointed out in his report, such acts are already prohibited in international human rights and humanitarian law. However, the most-explicit treatment of the proscribed act in international humanitarian law (IHL) is still left to interpretation within the general category of destruction of civilian property. Clearly, adequate housing is far more than mere property. Conceptually and legally, domicide needs to be treated on its own terms.
Its legal definition must include recognition that domicide is both a gross violation of human rights and a grave breech of IHL. With the first priority going to its victims and affected persons, remedies require full implementation of the reparation framework, including each entitlement of material and moral restitution, return, resettlement, rehabilitation, compensation for values not subject to restitution, guarantees of nonrepetition and victims’ satisfaction.
Prosecution, punishment and other forms of justice for perpetrators may be the subjects of longer-term transitional-justice processes. A slow pursuit of perpetrators and adjudication of their culpability should never be used as an excuse to delay and, hence, deny remedy and reparations for domicide victims.
Any indictable act could involve a combination of crimes or elements of crime at any time. However, greater precision in the law is still needed to identify, recognize and define the crime of domicide in the legal lexicon and applicable instruments to end, prevent and remedy its persistent practice.
Image: Graphic from “Crime of ‘Domicide’: The much-needed upgrade to International Criminal Law.” Source: The European Institute for International Law and International Relations.