Islamic Refugee Law: Historical Context

The Islamic refugee law is central to Islamic history, which talks about persecution Prophet Mohammed and his companions and about their Hijra or their migration to attain a state of security. The law, as such, is extremely sympathetic to the plight of refugees. A verse in the Quran reads as truly believers are those who believe and emigrate and strive in the cause of God, and those who shelter and gave them refuge and support them. This statement shows the value of human rights in Islam. Islamic law considers seeking refuge as a right of any person, who comes under an Islamic jurisdiction. It does not require this person to provide any reason to the host state. The institution of refugee under Islamic law has developed its statute on rights belonging to the person and not on granting him rights.

Similarly, International refugee law relied on the notion that a persecuted person or a person oppressed in his/her own country of origin possesses the right to leave and seek protection in another state. Such person should qualify the definition of a refugee established by the host state in order to be granted the rights of a refugee. Rights of refugees are matters of international law and they are derived from treaties, customs and/or general principles of law. Thus, they are entitled to the benefits of the narrow range of rights set by international aliens law, which also include the duty of states to respect life and physical integrity of the aliens, including refugees. Considering this principle of international law, it could therefore be stated that both Islamic laws and international laws have the common principles of respecting rights of refugees and protecting their physical integrity. However, international law differs from Islamic law in terms of protecting rights of refugees in that it provides for granting rights to refuges and not as inevitable rights, as provided under Islamic.

Significance of the research

The Basic code of Islam provides for assisting refugees in finding a place of security. They cannot be return to the place of insecurity once they are given asylum. This right is also extended to non-muslims and even enforced through international law, such as the 1990 Cairo Declaration on Human Rights in Islam. For example, the influx of Iraqi refugees to Syria and Egypt included non-Muslims. However, Muslim world has expanded beyond the Middle East and millions of Muslims have shared territories with other religion. This raises the question of whether all Islamic Law or states recognise non-Muslim communities and whether they offer protection of laws and rights, including the rights of refugees, whether Muslims or non-Muslims. The Basic Code is the supreme code, which cannot be overridden by any treaty or constitution. It allows Muslims to create peace and cooperation treaties with non-Muslims. Siyur is the Islamic international law, which is a product of Basic Code. Both the international law and Islamic law need each other.

Most of the refugees in the world are Muslims. This research will examine how Islamic law honour refugees and examine the extent of compatibility between refugee protection rules under Islamic law and international law. This research will bring clarity in understanding a legal framework to understand the roles of each law and their complementary or non-complementary roles of both the laws that could possibly implement more effective laws for refugee rights.

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Research Questions

This research will attempt to seek answers to the following main questions:

Primary Question:

1. What are the common and different provisions that underline both Islamic laws and international laws in regard to protection of refugee rights?

2. How far does the international law influence refugee protection principles in Islamic law context?

Secondary Questions:

3. What is the extent of efficiency of both the laws in protecting rights of refugees?

4. In case of conflict between the laws, how does it impact the rights of the refugees?

Aims/Objectives of the research

The main aim of this research is to gather the level of harmony or lack of it between the Islamic laws and international laws in their role as tools of protection and further rights of refugees.

This research will aim to find how Islamic law and international law adapt to each other and how they manage between specific needs considering the conditions set out in their respective principles around refugee rights. This research will address whether there are variable factors, including legal, cultural and religious practices, recognised by both the laws that shape measures and policies that influence the handling of refugee rights. It will aim to come to a clear evaluation of how the refugee laws are practiced, whether they are selective or subject to numerous interpretations or practices.

Scope

Since the Islamic refugee law is central to Islamic history, the scope of this research will refer to the Holy Qur’an, the Sunnah and Hadith of the Prophet of Islam. They are considered the foundation of Islamic refugee law. One of the characteristic of this research will be to closely review the Shari’ah texts from the Holy Quran and text from Sunnah. This research will find relevance of these religious texts to principles and rules governing rights of refugees and how they concern refugees’ welfare, interest, integrity and freedom to live a decent life.

The UNHCR recognises the value of Islamic traditions as the source of protection extended to refugees. However, it is also important to note that laws of the modern society extend rights only to the extent considered appropriate by states. As such, even the religious narrative is appropriated by states where they are deemed appropriate as per the states’ narrative. In this context, this research will review corresponding provisions under international laws and treaties, including the 1951 Refugee Convention, the 1967 Protocol, the UDHR, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights. This research will identify and discuss core customary international law in specific relevance to rights of refugees. This research will then assess these provisions and customary international legal principles from the perspective of Islamic law. In this connection, this research will refer to resolutions adopted by the Organization of the Islamic Conference on human rights from the perspective of refugee law. This research will also touch upon the collaborative work of the Office of the United Nations High Commissioner for Refugees (UNHCR) and the Organization of the Islamic Conference on issues of refugees in the Muslim world.

Literature review

Under the 1951 Convention, a refugee is granted rights, including right not to be discriminated in the application of the Convention (Article 3), freedom to practice religion (Article 4), certain rights in respect to movable and immovable properties (Article 13), rights to engage in wage-earning employment (Article 17) and many more. This Convention has created a system to provide protection to people exposed to risk of persecution in their own countries. However, in a review of regional approaches to forced migration, it was found that the Convention needs a legal body to interpret the Convention. There is arguably no agreed mechanism to competent enough to decide safe third-country issues. In the context of refugee protection, the increase integration of refugee law into human rights creates a new dimension to study existing legal framework. Provision such as Article 28 of UDHA provides for right to a social and international order to realise rights provided under the UDHR. This obligates states to establish mechanism to that effect. The human right perspective to refugee law has expanded protection of refugees and issues may arise regarding special protection to refugees. It may also pose a challenge to UNHCR where the 1951 Refugee Convention and other refugee law would be the forefront law to protect refugees.

Refugees’ issue were frequently part of the Islamic summits in the 1990s. Most of the policy programmes included provisions on refugees’ rights. The OIC has been proactive in issues regarding refugees, particularly from or in Muslim countries. Rights of refugees formed central issue on the 1990 Cairo Declaration on Human Rights in Islam. It provides for free movement within the framework of Sharia’s, and provides for a person’s entitlement to seek asylum in a country in case of persecution.. It, however, does not cover cases where the person has committed a crime under Sharia. OIC also focuses on collaborating with UNHCR and provides for developing Islamic discourse to refugee rights in conformity with in international refugee regime. The 1987 resolution of OIC considered the 1950 Convention as the key instrument to deal with refugee protection, and encourage its member states to ratify the Convention. However, despite all steps and resolutions, the OIC did not give much attention to the refugee issues in it public releases and programmes, for example in the Syrian refugees case until 2015. Some of the reasons were alleged disproportionate distribution of refugee burdens and alleged lack of support from international community. The OIC handling of the Syrian refugees reflects that the involvement of the OIC members and international community provided positive result to the handling of the crisis.

Review of the existing international law and Islamic law in context of refuges rights presents an opportunity to integrate the two laws to complement each other. Both the sets of law have the common underlying principle of protecting the rights and interests of refugees. However, the issues appear to lie on the pragmatic implementation of the laws. Particular observation is that it is more than a gap that exists between the two legal frameworks. This literature review will discuss this particular phenomenon that will facilitate in pin-pointing the factors challenging the integration of the two sets of law, which could have the opportunity of promoting and advancing the rights and plight of the refugees.

Methodology

This research will employ the doctrinal research method and the comparative legal approach.

The doctrinal research method is also known as the ‘black-letter’ research methodology, which will emphasise on the legal provisions, and their analysis and evaluation. Analysis in this method will be conducted through interpretivism and legal reasoning, which will identify and analyse legal provisions and judgments based on the statutory law and judgments of the courts. This research method, thus, involves a critical and interpretative evaluation of legal rules, which aims to provide certain recommendations concerned with the research problem and questions.

The doctrinal research method uses interpretative tools and legal reasoning as the primary research technique. This technique is particularly employed while conducting research in legal questions that need critical evaluation. This research method is a qualitative research method, and the researcher employing this method does not need to formulate a hypothesis. Instead, in this current research, the researcher has formulated the research questions.

This current research will involve a review and consideration of laws and legal principles in both the Islamic law and international law environments in context to refugee rights. As this research emphasis on such legal provisions, problem, questions and reasoning, the doctrinal research method is the most suitable to deal with these areas of the current research. Employing this method will enable the researcher to evaluate laws, legal provisions and legal principles using interpretivism and legal reasoning. This method will enable the researcher to adopt a critical approach to derive relevant recommendations that could inform future development of the relevant laws.

This research will also adopt the comparative legal approach, which studies different jurisdictions in the context of the same legal issue. It helps the researcher to gather and tabulate data from concerned jurisdictions to review their similarities and differences. It uses the descriptive method and applied method. The former describes variations and the latter provides for a legislative or regulatory framework based on the result of the variation study. In this current research, the former method will help in comparing similarity and differences between Islamic Law and International Law in context of refugee rights. The latter will not be used in this research as it is beyond the scope of the research to recommend a regulatory framework based on the result of the comparison.

Predicted Outcome

This research will attempt to understand the Islamic law regarding protection of refugees. It will attempt to understand the Islamic principles that impact refugee protection. It will undertake a comparative analysis on these aspects between the Islamic legal framework and international legal framework to point out the gap in either the international law or the Islamic law or both.

Bibliography

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