WAR CRIMES AND THE HOME INITIATIVE
The protection of housing, land and property (HLP) rights is central to the enjoyment of all economic, social and cultural, civil and political rights. However, despite the fundamental importance of HLP rights, they remain among the most violated of all universal human rights. Egregious abuses of HLP rights and widespread impunity for their violation continue with regularity across the globe whether in times of conflict, post-conflict, natural disaster or peace. HLP rights have received increasing attention at the international level over the past 60 years and significant development has taken place in clarifying the content of these rights as well as corresponding state obligations and accountability for their violation.
However, one area that has received insufficient attention to date has been the relationship between HLP rights and international criminal law. Displacement Solutions firmly believes that clarifying the relationship between HLP rights and international criminal law in general, and promoting the international criminal prosecution of HLP rights violators in particular, are important steps towards ending impunity and providing accountability, a measure of justice and more effective protection of housing, land and property rights.
Although HLP rights abuses such as displacement, ethnic cleansing, the loss of property rights, land confiscation, and wanton housing damage and destruction are common to all conflicts, very little academic or practical research has been carried out to date on the manner by which these actions may constitute crimes against humanity or war crimes, and whether those responsible can be held accountable under international criminal or humanitarian law. Although international humanitarian law expressly prohibits displacement and other crimes affecting the home, virtually no specific attention has been given to this clear link.
As such, the War Crimes and the Home Initiative will provide the first comprehensive reference source on the potential application of international humanitarian and criminal law against perpetrators of housing, land and property rights abuses manifesting as crimes against humanity and war crimes. Recent developments in the field of international humanitarian and criminal law involving the prosecution of war criminals and those who have committed crimes against humanity will increasingly enable the international community to hold those ordering abuses of HLP rights accountable. Since the violent conflicts in Cambodia, the Balkans, Rwanda and elsewhere, considerable attention has been devoted to creating international courts and tribunals entrusted with bringing those individuals responsible for war crimes and crimes against humanity to justice. The Statutes of the International Criminal Court (ICC) and the International Tribunals on the Former Yugoslavia and Rwanda each provide the legal basis necessary to prosecute persons responsible not just for crimes such as murder, rape or torture, but also for the related crimes of ‘destruction or appropriation of property’, ‘destruction of cities’, ‘inhumane acts’, or ‘ordering the displacement of the civilian population’. In some cases before these tribunals, individuals have been prosecuted for conducting forced removals, including in the Tadic and Nikolic decisions of the International Tribunal on the Former Yugoslavia (ICTY). In addition, the Rome Statute of the International Criminal Court classifies forcible transfer as a crime against humanity. There have recently been calls for the indictment of Zimbabwean President Robert Mugabe before the International Criminal Court for the large-scale forced evictions carried out in the country in 2005. Others have urged the Cambodian Trial Chamber to ensure that the mass forced evacuation of Phnom Penh in 1975 is included as one of the crimes considered by the new Court in Cambodia adjudicating some of the crimes committed during the reign of the Khmer Rouge in the 1970s.
HLP rights violations carried out during armed conflicts can now form one of the grounds on which to base complaints seeking justice. If these rights are to be taken seriously, there are strong grounds for using the new judicial bodies as an avenue of recourse for those who have suffered abuses of HLP rights amounting to crimes against humanity or war crimes. Those who advocate ethnic cleansing, who sanction violent and illegal forms of displacement, who call for laws and policies that clearly result in substantial homelessness, or who fail to end systematic discrimination against women in the land and housing sphere, can increasingly be held accountable under international law.