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Proquest Number: 10731452 All Rights Reserved INFORMATION TO ProQuest Number: 10731452 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 10731452 Published by ProQuest LLC(2017). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 Abstract The essence of this study is to clarify the position of the Islamic tradition with regard to refugees based on the main Islamic Sunni sources and to examine the interface between this tradition and the 1951 Geneva Convention relating to the status of refugees. This study is the first that carries such examination since the endorsement of the 1951 Convention. This study is composed of four chapters with an introduction and a conclusion. The first chapter explains the concept of jiw a i' (protection), which was a governing custom in the Arabs’ life in the ja h iliy y a , while the second chapter traces the concept of jiw a i * after the advent of Islam in Mecca. The purpose of the two chapters is to establish how the Prophet and his followers dealt with the jiw a r custom when they were oppressed and sought jiw a r of the non-Muslims and also when they were able to offer jiw a r to fleeing non-Muslims in Medina. The third chapter deals mainly withaman (safe conduct) in the Islamic tradition. It also defines several relevant terms, such as dar al-harb, dar al-Islam, mustajh; muhajir, m usta°m in and dhim m l\ in order to put the concept of aman in context. Due to its particular significance, the study undertakes an extensive examination of the different interpretations of the verse (9:6) which is considered the cornerstone in legalising, by analogy, the concept of refuge in the Qur3an. The fourth and final chapter comprises a comparison between the Islamic tradition relating to the laws of aman and the 1951 Geneva Convention relating to the status of refugees. The conclusion however, highlights the close similarities between the Islamic tradition and the Geneva Convention and therefore recommends the Arab and Islamic governments to endorse the 1951 Geneva Convention relating to the status of refugees. And if necessary to make reservations concerning certain Articles taking account of the internal circumstances of each state. 2 Contents Acknowledgments...................................................................................................................5 Introduction .............................................................................................................................6 I. Chapter one: Thejiw a r in theja h iliy y a ...........................................................................18 - The definition of jiw a r ,:....................................................................................................... 29 - The reasons for asking jiw a r. .................................................................. 32 - Rights and duties of the m u sta jir ....................................................................................... 38 - Persons from whom jiw a r may be requested .....................................................................40 - The termination of jiw a i *....................................................................................................42 - The continuity of the jiw a i' to the modern age .................................................................. 42 - Conclusion ...........................................................................................................................43 II. Chapter two: Jiw a r in the Islamic Tradition in the Meccan period ..............................45 - Heaven’s protection to the Prophet ....................................................................................46 - The journey of the Prophet to al-Ta3if ............................................................................. 53 - The migration to Abyssinia ................................................................................................61 - The migration to Medina ....................................................................................................75 III. Chapter three:A m an (safe conduct) in the Islamic Tradition ....................................92 - D a ra l-h a ih and dai' al- Is la m ............................................................................................. 94 - The definition of the term £m u sta jh 3..................................................................... 101 - The definition of the term ‘ m uhajii! ................................................................................102 - The definition of the term m u sta °m in .............................................................................107 - D him m ls in the Islamic tradition ..................................................................................... I ll - The Interpretation of the verse (9:6) and its relation to am an ........................................ 121 - Conclusion .........................................................................................................................136 3 IV. Chapter Four: The 1951 Geneva Convention relating to the Status of refugees in the light of the Islamic tradition .............................................................145 - Definition of the term ‘refugee’ (Article 1 ) .................................................................... 148 - Exclusion clauses ............................................................................................................. 156 - Prohibition of expulsion or return ‘refoulement (Article 3 3 )....................................... 171 - The safety of them usta °m in ............................................................................................180 - General obligations (Article 2 ) .........................................................................................188 - Non-discrimination (Article 3) ........................................................................................194 - Religion (Article 4) ......................................................................................................... 201 - Personal status (Article 12) ...............................................................................................209 - Movable and immovable properties (Article 13) ........................................................... 214 - Right of association (Article 15) ............................ 226 - Access to courts (Article 16) ........................................................................................... 231 - Gainful employment (Article 17, 18 & 19) .....................................................................237 - Welfare (Article 20, 21, 22, 23 & 24) ............................................................................ 244 - Freedom of movement (Article 26, 27, 28 &29) ...........................................................254 - Refugees unlawfully in the country of refuge (Article 31) ...........................................259 - Expulsion (Article 32) .....................................................................................................263 - Naturalization (Article 34) ................................................................................................267 V. Final Conclusions ..........................................................................................................273 - Recommendations ............................................................................................................290 - Bibliography .................................................................................................................... 292 4 Acknowledgement Having reached this stage after four years of work on this thesis I am indebted to many people. I am really honoured to have my thesis supervised by Dr. Stefan Sperl who sensed the importance of this topic from the very beginning and worked enthusiastically in reading, discussing and guiding me to reach this point. All my gratitude and thanks to him. I also wish to express my gratitude to my mother whose prayers and encouragement was a source of empowerment to me throughout the years, and to my wife and friend Mariam who encouraged and cared immensely about me and our children during some difficult times I had to go through the four years of research. Her patience, support and sacrifice will always be remembered and appreciated. Without her I would have never been able to finish this thesis. My thanks are also extended to my children Albara and Almuthanna who missed their father and were my source of joy and pleasure all the way through. Being a full time employee and a full time student at the same time was extremely tough and without the understanding and support of my manager at work Majed al-Zeer it would have been much harder. I should also extend my thanks to all my friends and colleagues who supported and helped in many ways. Finally, all the above individuals deserve a share of the credit, if any credit is due, however, any faults or weakness are my responsibility. 5 Introduction By any measure, the issue of
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