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For decades, xenophobia – which can be defined as the civic exclusion of those presumed alien to a nation – has been relegated to the margins of the UN treaty body system: it was routinely invoked alongside racism as a formulaic pairing (“racism and xenophobia”) but rarely treated as a legal problem in its own right. On February 3, the Committee on the Elimination of Racial Discrimination (CERD) and the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) broke this pattern by issuing two joint interpretative comments – a general guideline and a thematic one – on eradicating xenophobia against migrants and others perceived as such.

Ingmar Bergman once remarked, “I am living permanently in my dream, from which I make brief forays into reality”. The Committees make an overdue incursion into the uncomfortable global reality of anti-immigrant politics – but the foray remains momentary. For all their effort and ambition to provide a comprehensive response to xenophobia, the extensive joint guidelines dodge the all-important structural tension arising from migration governance: xenophobia is embedded in an international system that recognises the sovereign impulse to police migration not only as a (much critiqued) prerogative but, crucially, as a legitimate objective. Even under a “demystified” conception of sovereignty that rejects unfettered state power, posing the question of xenophobia forces a reckoning with its boundaries.

Xenophobia’s history as a legal afterthought

The joint comments by the CERD and the CMW represent the most detailed attempt yet to clarify the meaning of xenophobia within international human rights law. That this effort is made only now underscores how limited prior engagement has been. Not a single core human rights treaty mentions xenophobia. In fact, xenophobia entered the legal vocabulary only indirectly via the 1993 Vienna Declaration and Programme of Action, which, among others, called for the appointment of a Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance (para 21).

From the outset, however, recognition came with limitations. The 2001 Durban Declaration offered the first quasi-operational treatment but immediately framed xenophobia through its relationship to racism. Its preamble suggests that “xenophobia and related intolerance” constitute serious violations of human rights only insofar as they amount to racism and racial discrimination (p. 9). Subsequent practice largely followed this approach, subsuming xenophobia under the doctrinal umbrella of racism and racial discrimination without any bearing upon its scope. As Shreya Atrey has shown, the CERD has played a key part in consolidating this perspective, filtering individual communications by migrants and those perceived as such through narrowly defined racial grounds related to race, ethnicity, colour or descent.

Prior to the issuance of the joint guidelines, the most authoritative UN treatment of xenophobia was the 2016 thematic report by the Special Rapporteur on racism and xenophobia, Mutuma Ruteere. Surveying global and regional manifestations and proposing a working definition centred on the denial of equal rights to those perceived as outsiders based on their origins, values, beliefs, or practices (p. 1), the report sounded the alarm on the worldwide rise of xenophobic exclusion. It emphasised preventative, bottom-up responses aimed at countering anti-migrant discourses and promoting social solidarity. In legal terms, the Special Rapporteur largely mapped existing international and regional frameworks without developing a distinct doctrinal approach. Still, he problematised the equation of xenophobia with racism by outlining the diverse and intersectional forms through which perceived foreigners are marginalised.

The Venn diagram of xenophobia and racism

Building on this, one major contribution of the joint comments lies in connecting xenophobia and racism without collapsing the two. Rather than describing xenophobia in strictly racial terms, the Committees define it as the phenomenon in which “migrants and persons belonging to various social groups or minorities are portrayed and perceived as others, outsiders or enemies” based on the belief that they “threaten the predominant culture, heritage and wealth” (General Guidelines, para. 2). They offer a rare general definition of the term “migrant” not contingent on a specific legal status or purpose of stay (at para. 8), as including “all persons who move away from their country of origin across an international border with the purpose of living temporarily or permanently in another country.” At the same time, they acknowledge that xenophobia can impact non-migrants as well. The key category of xenophobia therefore becomes “migrants and others perceived as such” – institutionalising, and arguably refining, the concept of the actual or perceived foreigner introduced by E. Tendayi Achiume.

The Committees are equally clear that xenophobia “is both a systemic driver of racial discrimination and a consequence of structural forms of racism and discrimination against migrants and others perceived as such” (para. 14). They further frame this relationship as one of “intrinsic intersection” grounded in processes of racialisation and in the enduring legacies of colonialism and slavery that shape global inequalities and patterns of human mobility (para. 16). The General Guidelines accordingly call for anti-racist frameworks to be mainstreamed into migration policies and for the active involvement of relevant public institutions and civil society actors (para. 18). The resulting doctrinal map resembles a Venn diagram: xenophobia and racism emerge as distinct yet partially overlapping phenomena whose shared terrain demands explicitly intersectional responses.

Intersectionality and the risk of diffusion

Intersectionality appropriately appears as a “crucial and indispensable” theme in the comments (General Guidelines, para. 21). The General Guidelines detail the particular challenges faced by migrants whose experiences are shaped by gender, age (including children, youth and older persons), disability, race, indigeneity, statelessness, religion or belief, socio-economic status, and health. While this account echoes analyses and case law on the specific vulnerabilities of migrants and refugees, the systematic integration of their intersectional experiences into human rights practice remains a work in progress, including within the UN treaty bodies. Against this background, the Guidelines offer a forward-looking human rights agenda that – despite its shortcomings – brings a fresh perspective to the discussion especially when it highlights the narratives that sustain xenophobia and the legislative responses required to counter them.

The strong emphasis on intersectionality is not without risks, however. Precisely because xenophobia rarely fits neatly within a single ground of discrimination and often intersects with several, it has long fallen between the cracks of human rights law as “discrimination against nobody”. Simply reasserting intersectionality does not resolve this problem. On the contrary, it may contribute to the diffusion of a concept that has just begun to consolidate. The Committees themselves show that xenophobia has a defined core: it involves the exclusion or marginalisation of migrants and others perceived as such through narratives that cast them as threats to the dominant culture, heritage, or economic order. This social process cannot be fully explained by reference to intersecting grounds alone. Xenophobia is more than the sum of its parts.

How to fight xenophobic narratives?

One of the most intriguing contributions made by the Committees can be found in the Thematic Guidelines, which discuss at length the detrimental impact of xenophobic narratives and ways to counter them. The focus on narratives is clearly warranted, capturing an essential ingredient of xenophobia. It also makes the vital connection to the proliferation of xenophobic hate speech. The CERD can draw on its previous work in this regard, specifically General Recommendation 35 on combatting racist hate speech and General Recommendation 30 on discrimination against non-citizens, calling on states to protect against hate speech and racial violence.

To be sure, many of the recommendations calling for “rights-based narratives on migrants and migration” (p. 2) contained in the Thematic Guidelines are well taken. It is here, however, that the Committees start retreating from reality. One might still argue about the legal and political feasibility of extensive media regulation, such as the recommendation that “all media actors, both public and private, adopt codes of conduct and self-regulatory principles and guidelines aimed at ensuring a responsible approach to migration and ethical reporting and advertising”, para. 12). By contrast, it seems more far-fetched to expect “political parties, authorities and candidates” to “[f]ormally commit to putting an end to the instrumentalization of migration, asylum and related matters for political and electoral gain” (para. 101). More troubling still is the assertion that narratives “have wrongfully proposed that nationals should enjoy privileged protection of human rights” (para. 71) when status-based differentiations are, in fact, firmly embedded in the human rights framework. The juxtaposition of rights-based narratives and “narrow and unfair representations” (para. 3) seems to suggests that sorting machines will be undone through the sudden enlightenment of a deeply divisive discourse – a prospect that may appeal to human rights audiences but downplays the normative intricacy of debates concerning borders and belonging.

Xenophobia and the stubborn problem of boundary-drawing

So, when does migration governance become xenophobic discrimination? Here, the Committees offer little guidance. Instead, the Thematic Guidelines highlight the “reciprocal connection between xenophobic narratives and migration policies” (para. 48) to survey a wide range of state practices. Next to clearly illegal acts (such as pushbacks, collective expulsions, and racial profiling), they also list measures that the Committees cannot dismiss categorically: visa regulations, entry controls, asylum procedures, residence permits and discretionary regularisation programmes, detention, as well as migration law enforcement more broadly. Beyond general calls for greater transparency, effective remedies and stronger due process guarantees, the guidelines do not consider when these restrictive policies cross the threshold into xenophobic action. There are a few notable exceptions here; for instance, the discussions on detention and expulsion describe these as last resort measures (at paras. 49 and 52). These relatively clear signposts could inform future legal assessments.

Admittedly, it would have been asking much of the CERD and the CMW to resolve the difficult question of xenophobic boundary-drawing by themselves. The problem, however, is that the guidelines do not even pose it. Answering this question will be necessary to restore the authority of human rights law in a field where violations are “entrenched and pervasive”. Getting there requires not only an awareness of the limits of the human rights framework but also more than a quick foray into a reality that may appear unbearable when seen through a “decolonial, anti-racist, and intersectional lens” (General Guidelines, para. 19). Having recognised the persistent force of hostile narratives that target migrants and others perceived as such, the next step must be to establish convincing red lines for state actions. One obvious example would be policies aptly described as xenophobic on their face, such as the much-discussed Danish Housing Law, which explicitly targets “immigrants and their descendants from non-Western countries”. While drawing such lines will be more difficult in other cases, xenophobia will have to be confronted as a sui generis form of exclusion that challenges the very premises of the human rights framework.

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On 13 April 2026, France’s Court of Cassation will rule on whether cement giant Lafarge financed terrorism and violated international sanctions by paying over USD 5 million to armed groups in Syria, including ISIS, to keep its factories running. Beyond the question of terrorist financing looms an even more consequential issue: whether the corporation is complicit in crimes against humanity.

Under French law, corporate complicity turns on knowledge and facilitation, not on a shared criminal purpose. This marks a clear departure from the ICC’s “purpose” test, which requires proof that the accomplice intended to further the crime.

The stakes extend far beyond Lafarge. If that standard prevails, corporations cannot distance themselves from atrocities by invoking commercial motives. The case may crystallise a fault line between domestic and international standards of complicity – and reshape the legal parameters of operating in conflict zones.

Corporate criminal liability in French law

Article 121-2 of the French Criminal Code provides that “[l]egal persons… are criminally liable for offences committed on their behalf by their organs or representatives, as set out in Articles 121-4 and 121-7.” Article 121-4 defines direct perpetration, while Article 121-7 governs complicity.

In its 7 September 2021 judgement (the “Lafarge Judgement”), the Court of Cassation first applied corporate complicity standards to grave international crimes. It answered unequivocally: “Article 121-7 of the Criminal Code makes no distinction according to the nature of the principal offence or the status of the accomplice. This analysis is intended to apply to both legal persons and natural persons.” In one decisive sentence, the Court confirmed that corporations can be accomplices to crimes against humanity – a global landmark.

Article 121-7 defines an accomplice as anyone who “knowingly, by aiding or abetting, facilitates [the] preparation or commission [of a felony or misdemeanour].” Three elements must therefore be met under French law: first, the existence of a principal offence; second, the facilitation of its preparation or commission by aiding or abetting; and third, the knowledge that one’s act facilitates that offence.

The second and third elements hinge on the mens rea – the mental element or “élément moral”, particularly challenging for corporate actors where individual intent must be attributed collectively: does knowledge that one’s actions facilitate a crime suffice, or must intent to advance it be shown?

French vs. international standard

In contrast to the French provision, the statutes of international criminal tribunals vary significantly in structure and wording. These nuances are not merely semantic. They have shaped diverging interpretations that now place the French “knowledge test” at odds with the International Criminal Court’s (ICC) stricter “intent” requirement.

The ICC’s high threshold

The International Criminal Court (ICC) has taken a clear, restrictive position: aiding and abetting requires specific intent. Under Article 25(3)(c) of the Rome Statute, an accomplice must act “for the purpose of facilitating” the crime. As the Trial Chamber clarified in Bemba et al., mere awareness is insufficient; the accessory must actually desire the criminal outcome (Bemba et al., para. 97). From a corporate accountability perspective, this high evidentiary bar arguably operates as a “safe harbour” for corporations, allowing them to claim that their involvement in conflict zones was driven by commercial necessity rather than a shared criminal purpose.

The legacy of ad hoc tribunals

However, the landscape of international criminal law is more complex than the Rome Statute suggests. The ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) offer a more fragmented precedent. Their statutes distinguish between “complicity” and “aiding and abetting,” leading to a long-standing debate over the requisite mens rea.

Scholars such as Boas, Bischoff, and Reid have highlighted how different chambers – in landmark cases like Stakić, Semanza, Akayesu, and Krstić – vacillated between requiring “intent” and accepting “knowledge.” While “intent” raises the evidentiary bar, “knowledge” lowers the threshold for liability. Despite these diverging approaches, prominent experts like van Sliedregt argue that the “customary mens rea” for aiding and abetting remains knowledge, not purpose (see An Introduction to International Criminal Law and Procedure, 5th edn, p. 340; Boas, Bischoff and Reid, p. 296) – a view that supports a knowledge-based understanding of aiding and abetting in customary international law.

The Rwandan parallel to France

Building on this, several ICTR judgements (Akayesu, Musema, Bagilishema, and Semanza) drew on the Rwandan Criminal Code. This structural parallel reinforces the French Court’s approach: by fusing “complicity” and “aiding and abetting” into the single concept of “knowingly aiding or abetting,” both systems prioritise the act of objective facilitation over the specific intent of the accomplice.

It suggests that the French Court of Cassation’s interpretation – which explicitly rejected the need for an accomplice to “approve” or “intend” the underlying crime – is not a legal outlier. By holding in the Lafarge Judgement that knowledge of the principal crime is sufficient, the French court situates its standard within that broader tradition of “knowing facilitation”.

Applying the standard: Implications for Lafarge

If this “knowledge-only” standard governs the forthcoming decision on crimes against humanity, the prosecution’s burden of proof is significantly lower than under the ICC’s Bemba et al. standard. The focus shifts from the corporation’s internal “commercial purpose” to its “operational awareness.”

In its 2021 ruling, the Court already confirmed that Article 121-7 does not require the accomplice to intend or “approve” the underlying crime. It explicitly rejected the idea that the accomplice needs an “intention to commit” the crimes themselves (Lafarge Judgement, para. 66), stating that “it is sufficient that they have knowledge that the principal perpetrators are committing or about to commit such a crime” (Lafarge Judgement, para. 67).

The difference is decisive for the scope of corporate complicity: alignment with the criminal purpose is no longer a shield against liability.

Corporate liability in international criminal law and beyond

Efforts to codify corporate criminal liability at the international level reveal how consequential the choice of mental element can be. When drafters define complicity or aiding and abetting, the wording they select determines the reach of liability. Domestic approaches, including the French knowledge model, therefore offer important guidance for future international instruments.

The Malabo Protocol illustrates both the progress and the remaining uncertainty in this area. It expressly recognises corporate criminal liability and defines two mental elements: “corporate intention to commit an offence” and “corporate knowledge of the commission of an offence” (see Article 46C). Yet it does not clarify which standard applies to which mode of liability. Article 28N provides for both complicity (in sub-section 1) and for aiding and abetting (in sub-section 2), but it does not specify whether the courts must determine that the company meant for the crime to occur, or whether awareness that its conduct would facilitate the crime is sufficient. The allocation of the mental element is thus deferred to judicial interpretation once the Protocol enters into force.

Despite this ambiguity, the Protocol marks a significant development. It places corporate criminal liability within an international framework and makes the knowledge–intent distinction explicit. That distinction will shape how broadly corporate actors may be held responsible.

Developments in domestic and transnational criminal law will continue to influence this design. The implications are practical as much as doctrinal. Parent companies can no longer rely on complex corporate structures as a barrier to liability for conduct abroad. The Lafarge proceedings show that payments within supply chains may trigger responsibility where decision-makers knew that their support facilitated international crimes. In high-risk environments, meaningful due diligence becomes a legal imperative rather than merely a matter of corporate reputation for companies seeking to insulate themselves from complicity charges.

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On 2 March, the Netherlands’ new Minister of Foreign Affairs, Tom Berendsen, stated that he could have “understanding” for the American and Israeli attacks on Iran. When asked whether those attacks were contrary to international law, he replied: “That is not for me to assess.” He added: “This Government considers international law important,” but “at the same time, I also want to be honest that international law is not the only framework that you can apply to this situation. You must also be realistic given the murderous nature of the regime in Iran.” According to the minister, we must thus pursue a more realistic course in which there is only limited room for international law. Ultimately, he said, it is about the “Dutch interest abroad,” while we are “sailing through the fog of the new world order.” Such a relativization of international law, and its selective application, is troubling, not only from a moral perspective, but above all from a constitutional one.

Article 90: A Constitutional Mandate

Article 90 of the Dutch Constitution obliges the Netherlands Government to “promote the development of the international legal order.” This is not a political preference; it is a constitutional mandate.

During the constitutional revision of 1983, the government initially proposed deleting this provision. Strong resistance emerged from several political parties, including the Christian Democratic Appeal (CDA), which is a Christian democratic and conservative political party in the Netherlands, and the People’s Party for Freedom and Democracy (‘Volkspartij voor Vrijheid en Democratie’, VVD), a center-right conservative-liberal political party. Members of the CDA parliamentary group argued that the provision “had gained greatly in significance as a result of the international struggle, strongly supported by the Netherlands, in favor of human rights in the broadest sense of the word.” Members of the VVD argued that “maintaining such a provision would once again clearly demonstrate the great value that our country wishes to attach to an international order based on universally applicable legal norms.”

Prime Minister Dries van Agt (CDA), Minister of the Interior Hans Wiegel and Minister of Foreign Affairs Chris van der Klaauw (both VVD) ultimately accepted these objections. They wrote:

“Upon further consideration we believe we must accommodate these objections. In the effort to clarify and shorten the existing constitutional provisions on foreign relations, it is not appropriate to leave any room for the misunderstanding, nationally or internationally, that the tradition of the Netherlands to cooperate in promoting the international legal order would not be continued. We agree with the view that for this reason an explicit constitutional provision deserves preference.”

Article 90 was therefore retained. The ministers further clarified that “the concept ‘international legal order’ should be understood in the broad sense of an international order based on universally applicable legal norms.” They elaborated as follows:

“In our view, durable international peace […] is linked to the establishment of an international legal order. Since the Second World War, the Government has repeatedly expressed the conviction that an international system of fully sovereign states no longer fits the problems with which the present world is confronted and that it is therefore desirable to transform this system into a new world order in which national interests can, where necessary, be subordinated to more comprehensive interests. The provision incorporated in the Constitution in 1953 concerning the promotion of the development of the international legal order, against the background of this conviction (which is widely shared in our country), therefore primarily expresses that in the Dutch constitutional order national sovereignty is not regarded as an absolute norm. At the same time, in our opinion, striving for an international order based on universally applicable legal norms also includes promoting the universal realization of human rights, in the broadest sense of the word, that is to say both civil and political rights as well as economic, social and cultural rights. On that basis, the promotion of the welfare of the world population may also be understood to fall within it. We therefore believe that by maintaining [Article 90 of the Constitution] it is also expressed that global solidarity […] is a permanent objective of government policy.”

A Warning from the Advisory Council on International Affairs

In recent years, the Netherlands Government appears to have taken this constitutional duty less seriously. The Advisory Council on International Affairs (AIV) observed as much in its advisory letter of 23 October 2024, calling for a more active Dutch commitment to promoting and ensuring compliance with international law in the Israeli–Palestinian conflict. The AIV noted:

“The Netherlands has, over the course of its history, built a reputation when it comes to issues of international law. As the host country of the ICJ and the ICC, the Netherlands is also expected to play an active role in promoting and complying with international law. This role is also enshrined in our Constitution, the underlying rationale being that this is also a matter of direct concern to the Netherlands.”

The AIV also warned against “double standards”:

“The AIV would underscore the risks associated with applying double standards in promoting respect for human rights and compliance with international law in general. The inconsistent invocation and application of rules of international law contribute significantly to the undermining and politicization of that body of law, and undercut the overarching idea that international law applies, and is applied equally, to all states. Over the past year, inconsistency in the invocation and application of international law by Europe and European states has been repeatedly raised in the international political arena, including by UN Secretary-General António Guterres. The efforts that the Netherlands and Europe have made to create accountability mechanisms in the war in Ukraine, for example, find no equivalent when it comes to the Israeli-Palestinian conflict. Unbalanced enforcement fuels anti-Europeanism and anti-Americanism in many countries of the Global South.”

The Maduro Abduction and Dutch Silence

Let us look at the most recent developments. Former Minister of Foreign Affairs David van Weel (VVD) refused to condemn the violent abduction of the Venezuelan president Nicolás Maduro by the United States, the unlawfulness of which is evident. Don Ceder (Member of Parliament of the ChristenUnie), during a consultation of 8 January 2026, put the following question to the Minister of Foreign Affairs:

“My question is what it means for Article 90 [of the Constitution] that we are called upon to promote the international legal order. Does that legal order still exist? What does promoting it look like according to the minister?”

The answer of Minister Van Weel was as follows:

“There is a difference between promoting, making statements and judging; and there is also a difference in the way in which you do it. I see myself as a realpolitiker, in the sense that I look at the world as it is and not necessarily at the world as I would like it to be. Within the world as it is, I look at how I can make a difference in order to bring the world a little closer to how I would like the world to be. That very often requires diplomacy behind the scenes. That very often requires acting together with others, so as not to stand alone and thereby reduce your impact. By definition, that comes across as less spectacular [than making public statements], but I do believe that with my tangible contribution I do indeed fulfil the promise of Article 90 [of the Constitution]. With full conviction.”

The minister thus argued that as a realist within the existing world order he could achieve more through diplomacy behind the scenes than through public condemnations. A realpolitik interpretation that primarily focuses on quiet diplomacy and the direct national interest, in my view, sits uneasily with the idealistic-cosmopolitan vision that underlies Article 90 of the Constitution.

The Iran War and Dutch “Realism”

His successor, Tom Berendsen (CDA), goes one step further by emphasizing that applying only the international legal framework is not realistic when dealing with a murderous regime such as that of Iran. When responding to questions in the Dutch Parliament on 3 March, he emphasized once again that:

“[…] this Government stands for international law. We want to promote the international legal order, and we will do everything we can to use our position in the world to ensure that we have a world order based on international law. At the same time, we must be realistic. We see that international law as we envision it is being pushed aside by various major powers. And we will have to have a discussion together about how we as the Netherlands will navigate within that new world order in the future. At the same time, I continue to state that given the maliciousness of the Iranian regime the Netherlands Government has understanding that Israel and the US felt compelled to intervene.”

It is difficult to reconcile this approach, in which the relevance of international law is explicitly called into question and in which a selective application of it is advocated, with the constitutional duty under Article 90 of the Constitution, which requires that the Netherlands present itself as a defender of the international legal order – especially when this is difficult to do.

Conclusion

The fundamental question is therefore straightforward: does international law remain the foundation of Dutch foreign policy, or has it become merely one decision-making framework among many others? The Netherlands’ Constitution leaves little room for ambiguity. It would be welcome if today’s political leaders in the Netherlands drew renewed inspiration from the constitutional idealism articulated by their predecessors.

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