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Shaikh, Murtaza Hassan Protection of religious minorities : between Islamic law and international law : a comparative study of scope and freedom of religion /. PhD thesis. SOAS University of London. http://eprints.soas.ac.uk/26494 Copyright © and Moral Rights for this thesis are retained by the author and/or other copyright owners. A copy can be downloaded for personal non‐commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. When referring to this thesis, full bibliographic details including the author, title, awarding institution and date of the thesis must be given e.g. AUTHOR (year of submission) "Full thesis title", name of the School or Department, PhD Thesis, pagination. PhD: Protection of Religious Minorities under Islamic Law and International Law Murtaza Shaikh Protection of Religious Minorities: Between Islamic Law and International Law A Comparative Study of Scope and Freedom of Religion Murtaza Hassan Shaikh (SOAS No. 245650) Thesis submitted for the degree of PhD 22 September 2015 Supervised by Prof. Mashood Baderin Department of Law SOAS, University of London Page 1 of 222 PhD: Protection of Religious Minorities under Islamic Law and International Law Murtaza Shaikh Declaration for SOAS PhD thesis I have read and understood regulation 17.9 of the Regulations for students of the SOAS, University of London concerning plagiarism. I undertake that all the material presented for examination is my own work and has not been written for me, in whole or in part, by any other person. I also undertake that any quotation or paraphrase from the published or unpublished work of another person has been duly acknowledged in the work which I present for examination. Signed: ____________________________ Date: _________________ Page 2 of 222 PhD: Protection of Religious Minorities under Islamic Law and International Law Murtaza Shaikh Forward The completion of this PhD thesis has been an extremely long and arduous process. It has taken a good part of eight years of my life, which I perhaps in hindsight should have (now) happily swapped for four full time (focused) years. But instead I, like many fools before me, chose a topic which was far too ambitious and beyond my skill-set as well as insisting on simultaneously working, in order to mutually enrich my academic and practical pursuits. Such idealism and naivety, unsurprisingly, was paid for in bucket loads of sweat and tears not to mention grief. Most of those eight years and more specifically three periods of intense study took place after my marriage and continued over a period which saw the arrival of three priceless and adorable children. The necessary research and drafting would have been impossible to conceive and execute without the encouragement and determination of my beloved and cherished wife. It is an extremely tall order to ask a young, idealistic and still dreaming woman to have to partly forgo her most valued nascent years of marriage to a laptop and libraries. Despite suffering from trying and extensive periods without me, one of which involved me living on my own for two and half months at her suggestion, she continued to provide the necessary momentum and inertia, when I despaired of them. It is for this reason, I dedicate this thesis to my intrinsically and extrinsically beautiful wife, with other-worldly forbearance even in the face of loneliness and distance. My very special companion, who pushed me even when she stood to suffer the most, only so I could gain and be elevated towards the goals that I held dear. She has shown and taught me the true spirit of altruistic love. She has humbled and grown me far more that a PhD ever could. This is for and because of you Nawel. Page 3 of 222 PhD: Protection of Religious Minorities under Islamic Law and International Law Murtaza Shaikh Abstract This thesis undertakes a critical comparative examination of the protection of religious minorities under Islamic law and international human rights law. Perhaps no subject epitomises the perceived incompatibility between Islamic law and human rights law than the protection of religious minorities. Often viewed through the lens of the classical notion of ahl al-dhimma (protected people), the treatment of religious minorities under Islamic law has been portrayed as oppressive, degrading and discriminatory. Scholarship thus far has sought either to affirm this negative perspective, convey only positive aspects or declare its inapplicability to the present context of international relations. The relevance of the study goes beyond the conventional question of Muslim-majority States navigating between their international human rights obligations and their self-imposed commitment to Islamic law principles. Two important contemporary phenomena that take the question beyond that traditional premise are the emergence of Islamically inspired non-State actors seeking to apply rigid and literalist interpretations of Islamic law and the rapid rise of a wave of opinion attempting to portray Islam in a negative and retrograde light motivated by the far-right politics of xenophobia and Islamophobia. Ironically, the alleged intolerance within Islam is used as justification for the instigation of hateful sentiments against Muslim (immigrant) minorities in different parts of the world today. Hitherto the topic has seldom been analysed by reference to the doctrinal frameworks that accompany international law and Islamic law, as undertaken in this study. Cognisant of contextual factors, the study demonstrates that the depth, flexibility and principles of Islamic law may be far more amenable to the protection of religious minorities than popularly thought and that, similarly, that religious minority rights under international law may be subject to a range of interpretations and not universally adhered to or agreed by States. The main purpose of the thesis is to derive and compare, what it calls the ‘spectrums of validity’ under both systems on two distinct issues, namely: (i) the concept of the scope of religious minorities and (ii) their right to freedom of religion. Page 4 of 222 PhD: Protection of Religious Minorities under Islamic Law and International Law Murtaza Shaikh Contents Chapter 1: Introduction I. General Context of Study ----------------------------------------------------------------------7 II. Specific Context of Study -------------------------------------------------------------------- 12 III. Utility of Study -------------------------------------------------------------------------------- 19 IV. Conceptual Clarifications -------------------------------------------------------------------- 19 V. Why refer to the Dhimmi Model ------------------------------------------------------------ 28 VI. Structure of Thesis ---------------------------------------------------------------------------- 33 SECTION I: Concept of Scope Chapter 2: Scope of the Concept of Ahl al-Dhimma (Protected Peoples) under Islamic Law I. Introduction ------------------------------------------------------------------------------------ 37 II. Are ahl al-dhimma limited to only People of the Book (ahl al-kitab)? ---------------- 40 III. Can only the Children of Israel be considered as People of the Book? ---------------- 43 IV. Does ahl al-kitab only refer to the original Jews and Christians prior to the alteration of their beliefs? ---------------------------------------------------------------------------- 45 V. Are the Magians People of the Book or polytheists? ------------------------------------ 48 VI. Can polytheists be considered as ahl al-dhimma? – -------------------------------------- 51 VII. Conclusion--------------------------------------------------------------------------------- 58 Chapter 3: Scope of the Concept of ‘Religious Minorities’ under International Law I. Introduction ------------------------------------------------------------------------------------ 59 II. Scope and Definition of ‘Religion and Belief’ -------------------------------------------- 60 III. Difficulties in defining ‘Minority’ a. Definition – Points of Exclusion --------------------------------------------------- 69 b. Self-identification -------------------------------------------------------------------- 75 c. Existence and Recognition ---------------------------------------------------------- 76 d. Do Minorities have the right to self-determination ------------------------------ 77 IV. ‘National Minorities’ and the Problem of ‘New’ Minorities in Europe --------------- 78 V. Conclusion --------------------------------------------------------------------------------------87 Chapter 4: Comparison of Scope I. Introduction ----------------------------------------------------------------------------------- 89 II. Favoured Religions v. State Neutrality ----------------------------------------------------- 91 III. Implications of Inclusion and exclusion --------------------------------------------------- 94 IV. Contextual Factors ---------------------------------------------------------------------------- 96 V. Conclusion ------------------------------------------------------------------------------------ 104 Page 5 of 222 PhD: Protection of Religious Minorities under Islamic Law and International Law Murtaza Shaikh SECTION II: Freedom of Religion