Refugee Status in Islam: Concepts of Protection in Islamic Tradition and International Law

223 Pages·2010·1.72 MB·English

by  Arafat Madi Shoukri

Arafat Madi Shoukri is Director of the Council for European-Palestinian
Relations (CEPR). He has participated in many conferences on the issue
of Palestinian refugees and is a regular commentator in the media about
the current affairs of the Palestinian refugees. He holds a PhD from the
School of Oriental and African Studies (SOAS), University of London.
P1:PHB Trim:138mm×216mm Top:1in Gutter:1in
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ii
REfUGEE StAtUS
iN iSLAm
Concepts of Protection in
islamic tradition and
international Law
Arafat madi Shoukri
Published in 2011 by I.B.Tauris & Co Ltd
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Distributed in the United States and Canada
Exclusively by Palgrave Macmillan
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Copyright © 2011 Arafat Madi Shoukri
The right of Arafat Madi Shoukri to be identified as the author of this
work has been asserted by the author in accordance with the Copyright,
Designs and Patent Act 1988.
All rights reserved. Except for brief quotations in a review, this book, or
any part thereof, may not be reproduced, stored in or introduced into a
retrieval system, or transmitted, in any form or by any means, electronic,
mechanical, photocopying, recording or otherwise, without the prior
written permission of the publisher.
International Library of Migration Studies 7
ISBN 978 1 84885 390 4
A full CIP record for this book is available from the British Library
A full CIP record for this book is available from the Library of Congress
Library of Congress catalog card: available
Printed and bound in India by Thomson Press (India)
Camera-ready copy edited and supplied by the author
CONtENtS
Acknowledgements vii
introduction 1
1 The Jiwār in the Jāhiliyya 3
introduction 3
The definition of jiwār 4
The reasons for asking jiwār 7
Rights and duties of the mustajīr 12
Persons from whom jiwār may be requested 14
The termination of jiwār 16
The continuity of the jiwār to the modern age 16
2 Jiwār in the islamic tradition in the meccan period 17
Heaven’s protection of the Prophet 17
The journey of the Prophet to al-‡ā√if 23
The migration to Abyssinia 27
The migration to medina 33
3 Amān (safe conduct) in the islamic tradition 45
Dār al-˛arb and Dār al-Islam 46
The definition of the term mustajīr 51
The definition of the term muhājīr 51
The definition of the term musta√min 55
Dhimmīs in the islamic tradition 57
The interpretation of verse 9:6 and its relation to amān 66
vi Refugee Status in islam
4 The 1951 Geneva Convention relating to the Status of
Refugees in the light of the islamic tradition 87
Definition of the term ‘refugee’ (Article 1) 88
Exclusion clauses 95
Prohibition of expulsion or return: ‘refoulement’ (Article 33) 106
Non-refoulement in the islamic tradition 108
The safety of the musta√min 114
General obligations (Article 2) 120
Non-discrimination (Article 3) 125
Religion (Article 4) 130
Personal status (Article 12) 136
movable and immovable property (Article 13) 139
Right of association (Article 15) 148
Access to courts (Article 16) 152
Gainful employment (Articles 17, 18 and 19) 156
Welfare (Articles 20, 21, 22, 23 and 24) 162
freedom of movement (Articles 26, 27, 28 and 29) 169
Refugees unlawfully in the country of refuge (Article 31) 173
Expulsion (Article 32) 175
Naturalization (Article 34) 178
Recommendations 183
Notes 185
Bibliography 197
Index 209
ACkNOWLEDGEmENtS
The origin of this book is a thesis written to complete a PhD program at
the School of Oriental and African Studies (SOAS), University of London,
in 2007. This thesis was the first, to the best of my knowledge, to treat this
topic comprehensively.
Having reached the final stage of my work, i am indebted to many
people. i was honoured to have my thesis supervised by Dr. Stefan Sperl,
who sensed the importance of this topic from the very beginning and
worked enthusiastically to read, discuss and guide me to reach this point.
i wish to express great gratitude and thanks to him.
i also wish to express my gratitude to my mother, whose prayers and
encouragement were a source of empowerment throughout the years,
and my wife and friend, mariam. i will remember and appreciate mar-
iam’s patience, support and sacrifice for the rest of my life. Without her,
i would never have been able to finish this book. Likewise, i extend my
thanks to my children Albara, Almuthanna and Jana, who missed their
father during my research and were a constant source of joy and pleasure.
finally, being a full-time employee and student at the same time was
extremely tough, and without the understanding and support of my man-
ager at the time, majed al-Zeer, it would have been much more difficult.
The same is true for all of my friends and colleagues who supported and
helped me in many ways.
All of the above individuals deserve a share of the credit for this work.
However, any faults or weaknesses are my responsibility.

iNtRODUCtiON
By any measure, the issue of refugees occupies an important place on
the contemporary international agenda. millions of people around the
world have become refugees as a result of wars, natural disasters and
other circumstances.
The challenges facing international agencies such as the United Nations
refugees agency (the UN High Commissioner for Refugees – UNHCR)
are many and include ‘the plight of tens of millions of internally displaced
people; widespread confusion over migrants and refugees; tightened
asylum policies and growing intolerance’.1
A quick survey of elections, be they in the developed or developing
world, shows just how sensitive the refugee question is. Parties of all
political hues have a position on this issue. A considerable number of
developed societies are witnessing ‘the re-emergence of racism, xenopho-
bia and that brand of populism which always tries to generate confusion
in the public opinion between refugees, migrants and even terrorists’.2
The governments of many developed countries are seeking to reinterpret
articles of international law relating to refugees in an attempt to circum-
vent their duties and free themselves of the refugee burden.
Arab and muslim states are not exempt from this problem. On the con-
trary, according to António Guterres, the head of UNHCR, ‘the majority of
refugees worldwide are muslim’.3 Despite this, some UNHCR operations ‘in
the muslim world have been systematically underfunded … [and] the gen-
erosity of host countries has not been matched by that of the international
community’.4 moreover, ‘only a few of them possess domestic legislation
which deals with refugees or migrants’ (Elmadmad, 1991, p. 462). in fact,
only 35 out of 57 member states of the Organization of the islamic Confer-
ence (OiC) have ratified the 1951 Geneva Convention and the 1967 Protocol.5
2 Refugee Status in islam
The appeal that Guterres issued at the 127th meeting of the League
of Arab States (LAS) Council of ministers of foreign Affairs in Cairo in
march 2007 is very telling. He appealed to ‘the muslim world, and in
particular the Arab world, to play a greater role in the discussion, formu-
lation and implementation of international refugee policy’.6
Given this reality, and the ambiguity of the islamic position on such
issues, this research is especially relevant. Broadly, this book aims to
clarify the attitude of the islamic tradition towards refugees and establish
whether this tradition has any views, principles, rules or regulations on a
range of issues including the definition of the term refugee and the rights
and duties of refugees and host states. in this sense the book will hopefully
underline the relevance of the islamic tradition concerning refugee status
and will contribute to the international legislation regarding this issue.
This research also aims to collate relevant sources on refugees in Arab
history in the jāhiliyya (pre-islamic period),7 such as the concept of jiwār
(protection). The book will further examine concepts related to the refu-
gee status in the islamic tradition, for example the term hijra (migration)
and amān (safe conduct). together, these sources comprise a vital store of
information for future researchers seeking to examine islamic parallels to
contemporary regulations relating to refugees.
The significance of this research also derives from the fact that it is
the first occasion since the endorsement of the 1951 Geneva Convention
relating to refugees that a study has attempted to examine the interface
between the Convention and the islamic tradition, with a view to identi-
fying the similarities and differences between the two.
Remarkably little has been written on this topic from an islamic
perspective. in view of this, i hope this book with the huge amount of
scholarly opinions it includes will fill a gap in the islamic library and pro-
vide experts and legislators in islamic states with a guide to interpreting
the law on refugee issues into modern legislations.