NEW ISSUES IN REFUGEE RESEARCH Research Paper No. 146 The protection of forced migrants in Islamic law Kirsten Zaat University of Melbourne Law School Australia E-mail : [email protected] December 2007 Policy Development and Evaluation Service Policy Development and Evaluation Service United Nations High Commissioner for Refugees P.O. Box 2500, 1211 Geneva 2 Switzerland E-mail: [email protected] Web Site: www.unhcr.org These papers provide a means for UNHCR staff, consultants, interns and associates, as well as external researchers, to publish the preliminary results of their research on refugee-related issues. The papers do not represent the official views of UNHCR. They are also available online under ‘publications’ at <www.unhcr.org>. ISSN 1020-7473 Justice, kindness and charity* Despite Muslim States hosting large numbers of refugees1 and internally displaced persons (IDPs)2, the inherent protection and assistance afforded to forced migrants at Islamic Law3 has largely been overlooked. There is no readily available particularised fiqh (Islamic jurisprudence) on the matter, and it was not until the early 1990s that a few Islamic scholars began delving into the Shariah in the interests of finding Islamic modes of protection. Since that time, with the exception of a few recent fatwas, little academic scholarship has persisted despite the fact that the Sharia presents as a rich source of protection and assistance for forced migrants. This article seeks to lay the ground work for establishing an Islamic protection framework by consolidating and expanding existing efforts which have identify various yet incomplete modes of protection at Islamic Law.4 The author seeks to support the development of an indigenous, culturally viable Islamic protection framework which draws heavily upon long-held5 norms6 prevalent throughout the * Q16:90, “God enjoins justice, kindness and charity to one’s kindred [humanity], and forbids indecency, reprehensible conduct and oppression.” See Dawood, N.J. (trans.); The Koran: With Parallel Arabic Text, (London: Penguin Books, 1956), sura 16:90, p. 276. 1 Article 1(A) of the Convention relating to the Status of Refugees (1951) states that “… the term 'refugee' shall apply to any person who … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ...” The Protocol relating to the Status of Refugees (1967)1 broadens this definition by removing special and temporal limitations. See Convention relating to the Status of Refugees, 28 July, 1951, 189 UNTS 137 and The Protocol relating to the Status of Refugees, 31 January, 1967, 606 UNTS 267 see also Statute of the Office of the United Nations High Commissioner for Refugees, United Nations General Assembly Resolution 428, 5th Session, Supplementary No. 20, at p.48 (paragraph 8) UN Doc. A/1775 (1950). 2 “… persons or groups of persons who have been forced or obliged to flee or leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or man-made disasters, and who have not crossed an international recognised State border. See Guidelines on Internal Displacement (1998). 3 The term ‘Islamic Law’ is used here to refer to a combination of the Shariah – the ‘path to be followed’, or ‘right path’ (Q45:18), that is the Quran and Sunnah the sources of Islamic Law, and fiqh ‘understanding’ (According to the Prophet Mohammed, ‘To whomsoever God wishes good, He gives the understanding (fiqh) of the faith’), that is the methods by which Islamic Law is determined. See Kamali, M.H; ‘Law and Society: The Interplay of Revelation and Reason in the Shariah’, in Esposito, J.L; The Oxford History of Islam (1999), p.107 and Doi, A.R; Shari’ah: The Islamic Law, (1984), p.2. Thus the approach used in this paper does not assume the sources of Islamic Law to be the Quran, Sunnah, Ijma, Qiyas, Ijtihad and other types of legal reasoning. Rather we seek to distinguish between the Quran and Sunnah as immutable texts and fiqh as a human product which can change both temporally and spacially but is nonetheless important for interpretive purposes. Ramadan notes that including fiqh as part of the Shariah is ‘by no means a decisive or authoritive’ decision. See Ramadan, S; Islamic Law: Its Scope and Equity, (1970); 4 See Arnaout, G.M.; Asylum in the Arab-Islamic Tradition, UNHCR/International Institute of Humanitarian Law, Geneva, 1987; Elmadmad, K.; `An Arab Convention on Forced Migration: Desirability and Possibilities,' 3 International Journal of Refugee Law 461, 1991; Eickelman, D.F, and Piscatori, J (eds.); Muslim Travelers: Pilgrimage, Migration, and the Religious Imagination, (New York: Routledge Press, 1990); Suhrke, A; ‘Refugees and Asylum in the Muslim World’, in Cohen, R (ed); The Cambridge Survey of World Migration (Cambridge: Cambridge University Press, 1995); and Muzzafar; ‘Practicable Ideas? A Proposal for Revitalising the Rights of Forced Migrants in Islam’, Journal of Refugee Studies, vol 14, No.3, 2001. 5 See Lauren, P.G; The Evolution of International Human Rights, Visions Seen, 1998, p.5 where it is recognized that many of the existing norms in international law where devised elsewhere, long ago. 1 Quran7 and Sunnah8 - the primary sources9 of Islamic Law - while incorporating some general principles of fiqh. The author seeks to review Islamic Law protection mechanisms in and of themselves,10 and dispel ‘Orientalist problematique’ myths based on ‘Islamophobia’11 which purport Islamic Law to be defective, particularly as it relates to international law.12 The paper is thus framed within the context of post-colonialism and self- determination discourses which recognise amongst other things, that “[h]umanitarianism which remains the sole preserve of the West and fails to enlist the involvement of local peoples and governments as well as to establish resonance with 6 Unfortunately, Islam is frequently stereotyped by human rights advocates, academics and others as a result of refugee rights advocacy. Akram asserts that this amounts to a form of ‘neo-Orientalism’ during the asylum process which has a particularly negative impact on women and has obvious longer term implications for Muslim communities in general such stereotypes. See Akram, Susan Musarrat; ‘Orientalism Revisited in Asylum and Refugee Claims’, International Journal of Refugee Law 2000 12(1), pp.7-40. See generally, Said, Edward; Orientalism, Western Conceptions of the Orient, (London: Penguin, 1978) 7 While an English translation has been used here, it should be noted that “the Quran is spirit and light, both of which are not amenable to translation, and that translation, therefore, is a dissipation of it”, “in a translation it loses some of the original meaning.” See Mahmassani, S; (trans. Farhat J. Ziadeh) The Philosophy of Jursiprudence in Islam (Falsafat Al-Tashri fi Al-Islam, (Leiden: E.J. Brill, 1961), pp.64- 65 citing Sulayman, Hadith, at p.62. 8 The Sunnah of the Prophet Mohammed incorporates his words, actions, appearance, and tacit approvals and according to Imam al-Shafi’i, contains instruction which is threefold: (1) that which prescribes in accordance with what God has declared through the Quran; (2) that which explains the general principles contained in the Quran; and (3) Prophetic rulings on matters which can not be found in the Quran. See Hallaq, W.B; Islamic Law: History and Practice, Irwing, R (ed.); The New Cambridge History of Islamic Civilisation, vol.4, (Cambridge: Cambridge University Press, 2005), pp.14-16; and Shafi’I, M; al-Risalah, pp.52-53, as cited in Kamali, M.H; ‘Law and Society: The Interplay of Revelation and Reason in the Shariah’, in Esposito, J.L; The Oxford History of Islam (1999), p.63. 9 The Prophet Mohammed is reported to have asked a companion named Muadh ibn Jabal what he would use as a source of law upon his deployment as a qadi (judge and administrator) to Yemen. Ibn Jabal is believed to have answered “I will judge with what is in the book of God’. He was then asked by the Prophet ‘If you do not find a clue in the book of God?’, Ibn Jabal answered, ‘Then with the Sunnah of the Messenger of God?’ The Prophet then asked, ‘If you do not find a clue there in?’ Ibn Jabal responded: ‘I will exercise my own legal reasoning’. The Prophet was believed to be perfectly satisfied with this response. See Sunan Abu-Dawud, Book 14 Kitab Al-Jihad, Number 3585, at www.usc.edu/dept/MSA/fundamentals/hadithSunnahh/abudawud. 10 Mayer notes for example how little Islamic Law is referred to in existing human rights discourses and how when it is referred to it is typically only for comparisons sake. See Mayer, A.E; Islam and Human Rights, Traditions and Politics, (3rd edition 1999), p.41. 11 See for example, Bannerman, P; Islam in Perspective, A Guide to Islamic Society, Politics and Law, (1988), p.25; Robertson, B.A; ‘Islam and Europe: An Enigma or a Myth’, (1994) 48 Middle East Journal, No.2, pp.288-307; Tash, A.Q; ‘Islamaphobia in the West’, (1996) Washington Report on Middle East Affairs, November/December p.28. 12 The view is proposed by Strawson, who views a limited number os Islamic legal treaties – mostly written by ‘Occidental’ scholars and then determines Islamic Law’s flaws accordingly. See Strawson, J; ‘Encountering Islamic Law’, University of East London Law Department Research Publications Series, No.1, p.1 as cited in Baderin, Mashood A; International Human Rights and Islamic Law, (Oxford: Oxford University Press, 2005), p.11.