Is xenophobia itself a crime under international law? I’m asking because I understand that certain acts motivated by xenophobia, like hate crimes or incitement to violence against specific groups, are often illegal under domestic laws and can even be prosecuted as crimes against humanity under international law if they’re widespread or systematic. But is the attitude of xenophobia, the fear or hatred of foreigners, considered a crime in and of itself according to international treaties, customary international law, or the jurisprudence of international courts and tribunals? If so, what specific legal instruments define and prohibit it directly? If not, what are the challenges in criminalizing a general attitude, and how does international law address the harms caused by xenophobia without explicitly criminalizing the feeling itself? I’m particularly interested in understanding the distinction between criminalizing actions motivated by xenophobia and criminalizing the underlying xenophobic sentiment.

Answer

Xenophobia itself is not explicitly defined as a crime under international law in the same way as genocide, war crimes, or crimes against humanity. However, acts motivated by xenophobia can constitute international crimes if they meet the specific elements of those crimes.

Here’s a more detailed breakdown:

1. Xenophobia as a Root Cause: Xenophobia, understood as the dislike of or prejudice against people from other countries, can be a significant factor underlying or exacerbating international crimes. It often serves as a motive or driving force behind acts that do constitute international crimes.

2. Relationship to Discrimination: Xenophobia is closely related to discrimination. International law prohibits discrimination on various grounds, including national origin. Instruments like the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) obligate states to prevent and punish racial discrimination, which can overlap significantly with xenophobic attitudes and behaviors. ICERD Article 1 defines racial discrimination as: "…any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life."

3. Incitement to Hatred: While xenophobia itself isn’t a crime, incitement to hatred is a critical consideration. Article 20 of the International Covenant on Civil and Political Rights (ICCPR) requires states to prohibit "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence." Xenophobic rhetoric can easily cross the line into incitement, particularly when it demonizes or dehumanizes foreign populations, and creates a climate of hostility and violence.

4. Xenophobia and Crimes Against Humanity: If acts motivated by xenophobia are widespread or systematic, and directed against a civilian population, they can constitute crimes against humanity if they meet the specific elements defined in the Rome Statute of the International Criminal Court. For example, murder, deportation or forcible transfer of population, persecution, or other inhumane acts motivated by xenophobia could be considered crimes against humanity. Article 7 of the Rome Statute defines crimes against humanity, and includes "persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court." This persecution must be committed "pursuant to or in furtherance of a widespread or systematic attack directed against any civilian population, with knowledge of the attack."

5. Xenophobia and Genocide: In the extreme, if xenophobia is coupled with an intent to destroy, in whole or in part, a national, ethnical, racial or religious group, it could contribute to the crime of genocide. Article II of the Genocide Convention defines genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

   • (a) Killing members of the group;
   • (b) Causing serious bodily or mental harm to members of the group;
   • (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
   • (d) Imposing measures intended to prevent births within the group;
   • (e) Forcibly transferring children of the group to another group.

   While the targets of genocide are typically defined by ethnicity, religion, or race, the definition also includes "national group," leaving open the possibility that extreme xenophobia targeting a specific nationality could, in specific circumstances, be a contributing factor.

6. State Responsibility: Even if xenophobia does not directly trigger individual criminal responsibility under international law, states have a responsibility to protect all individuals within their territory from discrimination and violence, regardless of their nationality or origin. If a state fails to take adequate measures to prevent or punish xenophobic violence or discrimination, it could be held responsible for violating its human rights obligations.

In summary, while xenophobia itself is not a standalone crime under international law, it is a dangerous ideology that can contribute to, exacerbate, or motivate acts that do constitute international crimes such as crimes against humanity, genocide, or other human rights violations. International law focuses on punishing the acts motivated by xenophobia when they meet the legal thresholds for recognized international crimes, and on states’ obligations to prevent and punish discrimination and violence against all individuals within their jurisdiction.

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