Refugee Protection under Islamic Law
Autor: Fausto Aarya De Santis
Originally Published at Peace and Conflict Monitor on: 03/06/2015
“Every man shall have the right, if persecuted, to seek asylum in another country. The country of refuge shall be obliged to provide protection to the asylum-seeker until his safety has been attained”
– Article 12, Cairo Declaration on Human Rights in Islam (1990)
The majority of refugees worldwide have their origin in Islamic countries, or countries with a predominant Muslim population, and are hosted within countries that reflect the same religious prevalence or political structure. [1] This makes Islam the most widespread religion among both refugees and host countries, and the laws, values and teaching of this religion have a direct impact on the protection of refugees that nation states and the international community are capable to provide.
Islamic teachings in Muslim states have a significant impact on the implementation of international norms into domestic regulations and practices, including the protection of refugees. Sharia Law is customarily observed by Muslim states as law prescribed by the divine and thus standing legally superior to any legislation drafted by institutions, whether at the national or international level.[2] This belief can often antagonize Muslim states when norms and laws drafted internationally are incongruous with Sharia Law. The incompatibility between the two can subsequently translate into the refusal by a Muslim state or its citizens to ratify an international treaty, or the denial to adopt an international norm into domestic legislation. Not all states with a predominant Muslim population apply Islamic law, and when applied, countries differ in the degree of application: “Islamic principles and norms constitute a principle legitimizing factor for cultural- legal norms in most parts of the Muslim world”.[3] The principles affect government institutions, teachings of religious leaders, public option and personal behavior.
The prevalence of Islam as the religion among refugee populations and refugee hosting states, and the higher moral and legislative pedestal given to Sharia Law over International Law in some countries, collectively influence the protection of refugees. Considering this circumstance, it is increasingly relevant to better understand the definition of “refugee” in Islam and the modes of protection available within the framework of Islamic Law and Islamic teachings.
This article seeks to contribute to the understanding of the protection of refugees in Islam by examining the definition of “refugee” under Islamic jurisprudence[4], the Islamic principles that shape and impact refugee protection, and undertake a comparative analysis between the definition and subsequent protection provided to refugees under the Islamic legal framework and the International legal framework established under the United Nations.
Refugee protection under Islamic Law: Definition, Principles and Development
“Was not the earth of Allah spacious enough for you to flee for refuge?” (Q4:97) asked Allah to the Prophet and his companions when oppressed in Mecca.
The contemporary international legal definition of refugee is born from historical developments around migratory patters, religious persecutions, inter-state conflicts, the sovereignty-based structure of modern nation states, and the factors that spur human beings to flee their habitual place of residence. Societies throughout the world “have welcomed frightened, weary strangers, victims of persecution, violence and/or armed conflicts”.[5] The Islamic tradition, as many other traditions, developed principles to ensure victims of persecution could flee and find a safe sanctuary, and contributed to various fundamental elements that formed the basis of the international definition of refugee. Islamic principles surrounding refugee protection share the same fundamental values that underline International Refugee Law.[6]
Under Islamic Law, there is no specific definition of refugee to which all Muslim states abide. Islamic teaching refers to the right, but also obligation of the oppressed to flee in search of protection and security[7], and a duty of the believers to provide assistance to the oppressed.[8] In defining the “right to flee” and the “right to receive shelter”, Islam stipulates a wider definition of refugee, which encompasses under one category: refugees, internally displaced persons, stateless persons, and forced migrants; with no difference on the rights and obligation of the State or the host populations towards them.[9] The unified category is a representation of a more malleable definition of Nation State” at the time Islam was born, the prevailing migratory patterns and root causes of persecution for Muslims, and the hostility that Prophet Mohammed endured when he began to teach Islam in Mecca.[10] It is this climate of hostility and persecution that led the Prophet to his Hijra (migration) to Medina in search of Aman (safety). The journey of the Prophet laid the foundation of the Islamic concept of refugee and the two primary principles underlying refugee protection, which are present both in International Refugee Law and Islamic Law, and are:
- The right to seek asylum and receive protection (without discrimination)
- The principle of non-refoulment
Right to Migrate to Seek Asylum (Hijarah) and Receive Protection (Aman)[11]
The principles of Hijrah War and Aman symbolize the journey of the Prophet away from the land of the oppressors and persecutors, to a land where he was accepted and protected to share the wisdoms of Islam. These two principles ensured the Prophet dwelled in a safe abode for Islam to flourish, following which “respect for those seeking refuge has been a permanent feature of the Islamic faith”.[12]
People fleeing persecution are known as the Muhajarin – under Islamic Law, every person subjected to persecution has both a right and obligation to become a Muhajarin.[13] The person, community or state receiving a Muhajarin has a subsequent duty to provide safety and protection (Aman) to those seeking refuge within Dar-al-Islam (the House of Islam) irrespective of the religion followed by the Muhajarin.[14] In the words of the Holy Quran, “if anyone of the disbelievers seeks your protection, then grant him protection […] and then escort him to where he will be secure”. [15] In non-discriminating the right to seek asylum of a Mugajarin, Islamic Law recognizes also the vulnerability associated with persecution and the forced movement[16], and provides the Muhajarin with a special legal status to ensure dignified treatment[17] and protection. In addition, Hijrah complements modern refugee law to offer a broader definition of a refugee, and gives both individuals and states the right to determine asylum.[18]
Non-Refoulement
The principle of Aman includes both the provision of a safe sanctuary for the Mustamin (asylum-seeker) and the prohibition of returning her to a place where s/he will be persecuted or have her/his life threatened.[19] This includes also instances where the return of a Mustamin leads to the release of a captive Muslim.[20] Islamic societies have a duty to accept and protect refugees for as long as they seek and need protection,[21] and must follow specific procedures in responding to asylum request. The comprehensive regulations in providing Aman incorporate the principle of non-refoulement as a precept within Islamic Law.
Conclusión
Studies have shown that the effectiveness of applying any international concept within a particular culture is most successfully achieved by providing evidential support of the concept as existing within the cultural values. [22] In other words, international principles may be legitimized by demonstrating their compatibility with local cultural values. Consequently, in a global scenario where the world is facing an increasing flow of refugees originating from and seeking asylum in countries with predominantly Muslim populations, it is becoming progressively more important to understand the laws and principles regulating refugee protection in Islam in correlation with the broader international normative framework.
Islamic Laws and teachings present a rich and diverse source of protection and assistance to refugees.[23] Its fundamental tenants provide, in both principles and doctrine, regulations that if judiciously employed can enhance refugee protection and complement International Refugee Law in Muslim States hosting refugees. Regrettably, the legal instruments available under Islamic Law to protect refugees remain largely unknown and often overlooked. [24] However, as refugee movements evolve in the coming years, Islamic Law can increasingly develop into a source of protection for refugees in Muslim countries, as well as a means to support a broader and more nuanced definition of refugee that reflects the changing realities of displacement and the root causes that lead vulnerable groups into displacement.
Footnote:
[1] United Nations High Commissioner for Refugees, Mid-Year Trends 2014, at 5 (January 2015) URL = http://unhcr.org/54aa91d89.html
[2] Nisrine Abiad, Sharia, Muslim States and International Human Rights Treaty Obligations: A Comparative Study, (London: British Institute of International and Comparative Law, 2008) 111
[3] Mashood A. Baderin, International Human Rights and Islamic Law, (Oxford: Oxford University Press, 2005), 6
[4] Islamic jurisprudence is composed primarily by: (i) Sharia Law, which is revealed in the Quran and the Sunnah and is believed by Muslims to represent divine law; and (ii) Fiqh, which is the human understanding of the Sharia Law expanded and developed by the interpretation (ijtihad) of the Quran and Sunnah. In addition, Islamic Law is codified in various Islamic conventions on Human Rights.
[5] Organisation of the Islamic Conference; “Enhancing Refugee Protection in the Muslim World” (Working Document #1 for the OIC Ministerial Conference on the Problems of Refugees in the Muslim World, 27 – 29 November 2006): 2 URL = http://www.unhcr.org/45ab8dd72.html
[6] The right to seek asylum and receive protection (without discrimination), and the principle of non- refoulement
[7] Muhammad Munir “Refugee Law in Islam,” Journal of Social Sciences, 4, no. 2 (August 2011): 4
[8] Islamic Relief Worldwide, “Islam and Refugees”, (presented for the High Commissioner’s Dialogue
on Protection Challenges: Faith and Protection, 12-13 December 2012): 1 URL = http://www.unhcr.org/50ab90399.html
[9] Kirsten Zaat, “The protection of forced migrants in Islamic law,” New Issues in Refugee Research Paper146 (December 2007): 13
[10] Organisation of the Islamic Conference; “Enhancing Refugee Protection in the Muslim World” (Working Document #1 for the OIC Ministerial Conference on the Problems of Refugees in the Muslim World, 27 – 29 November 2006): 1 URL = http://www.unhcr.org/45ab8dd72.html
[11] Providing safety and protection is such an integral part of Islam that one can find at least 396 references to protection and assistance matters in the Holy Quran. In addition, there are also more than 850 Hadiths established under the Sunnah of the Prophet Mohammed that specifically deal with protection and assistance matters.
[12] Organisation of the Islamic Conference; “Enhancing Refugee Protection in the Muslim World” (Working Document #1 for the OIC Ministerial Conference on the Problems of Refugees in the Muslim World, 27 – 29 November 2006): 1 URL = http://www.unhcr.org/45ab8dd72.html
[13] Muhammad Munir “Refugee Law in Islam,” Journal of Social Sciences, 4, no. 2 (August 2011): 5
[14] Kirsten Zaat, “The protection of forced migrants in Islamic law,” New Issues in Refugee Research Paper146 (December 2007): 20
[15] Surah 9:6
[16] Kirsten Zaat, “The protection of forced migrants in Islamic law,” New Issues in Refugee Research Paper146 (December 2007): 6-7
[17] Organisation of the Islamic Conference; “Enhancing Refugee Protection in the Muslim World” (Working Document #1 for the OIC Ministerial Conference on the Problems of Refugees in the Muslim World, 27 – 29 November 2006): 1 URL = http://www.unhcr.org/45ab8dd72.html
[18] Islamic Relief Worldwide, “Islam and Refugees”, (presented for the High Commissioner’s Dialogue
on Protection Challenges: Faith and Protection, 12-13 December 2012): 1 URL = http://www.unhcr.org/50ab90399.html
[19] Antonio Guterres, foreword to The Right to Asylum between Islamic Shari’ah and International Refugee Law, by Ahmed Abou-El-Wafa (Riyad, United Nations High Commissioner for Refugees, 2009), 3 URL = http://www.unhcr.org/4a9645646.html
[20] Organisation of the Islamic Conference; “Enhancing Refugee Protection in the Muslim World” (Working Document #1 for the OIC Ministerial Conference on the Problems of Refugees in the Muslim World, 27 – 29 November 2006): 1 URL = http://www.unhcr.org/45ab8dd72.html
[21] Islamic Relief Worldwide; Introducation: Islam and Refugees, High Commissioner’s Dialogue
on Protection Challenges; ; (12-13 December 2012) ; URL = http://www.unhcr.org/50ab90399.html
[22] Mashood A. Baderin, International Human Rights and Islamic Law, (Oxford: Oxford University Press, 2005), 6
[23] Kirsten Zaat, “The protection of forced migrants in Islamic law,” New Issues in Refugee Research Paper146 (December 2007): 1
[24] Kirsten Zaat, “The protection of forced migrants in Islamic law,” New Issues in Refugee Research Paper146 (December 2007): 1
Bio: Fausto Aarya De Santis has most recently worked as the Programme Officer (Protection) for the World Food Programme regional office responsible for the Syria response, based in Jordan. Prior, he was the Programme Manager for the Organisation of Human Welfare in Kabul, Afghanistan, and the Ass. Programme Manager for Kautilya Society in Varanasi, India. He holds an MA in International Law from the University for Peace and a BA in Philosophy from St. Stephen’s College, Delhi University.
