The Right to Asylum between Islamic Shari’ah and International Refugee Law A Comparative Study Prof. Ahmed Abou-El-Wafa Produced and Printed by Printing Press of Naif Arab University for Security Sciences Riyadh - 2009 (1430 H.) The Right to Asylum between Islamic Shari’ah and International Refugee Law A Comparative Study Prof. Ahmed Abou-El-Wafa Riyadh - 2009 (1430 H.) “Those who believed and emigrated, and strove in the cause of GOD, as well as those who hosted them and gave them refuge, and supported them, these are the true believers. They have deserved forgiveness and a generous recompense.” (Quranic Surat al-Anfal, "The Spoils of War" [Chapter 8 verse 74]) “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” (Universal Declaration of Human Rights. Article 14) "Every man shall have the right, within the framework of the Shari'ah... if persecuted, is entitled to seek asylum in another country. The country of refugee shall be obliged to provide protection to the asylum seeker until his safety has been attained, unless asylum is motivated by committing an act regarded by the Shari'ah as a crime". (Article 12 of the Declaration on Human Rights in Islam) United Nations High Commissioner for Refugees (UNHCR) Regional Office in the Regional Office in the Arab Republic of Egypt GCC Countries E-mail: [email protected] E-mail: [email protected] Arabic Website: English Website: www.unhcr.org.eg www.unhcr.org First Edition 2009 This book is written, on behalf of UNHCR by Prof. Dr. Ahmed Abou-El-Wafa, Chief of the Department of Public International Law, Faculty of Law, Cairo University. Opinions involved in this book are those of the author but are not necessarily those of UNHCR. Quotations from, references to and reproductions of this book for academic, educational or other non-commercial purposes may be made without prior authorization from UNHCR, subject to quotation as a reference. This book is also available in Arabic language at: www.unhcr.org.eg The English version at: www.unhcr.org Translation done by: Arab International Center for Translation Services (AICTS), Shahat Mansour, Cairo - Egypt Table of Contents Foreword: The United Nations High Commissioner for Refugees …................................................................. 3 Foreword: The Secretary-General of the Organisation of the Islamic Conference …..............................… 9 Foreword: The President of Naif Arab University for Security Sciences …...................................................14 Foreword: The Rector of al-Azhar University ...................17 Acknowlegdments ...........................................................................................25 General Introduction................................................................................…27 Chapter I: Conditions of granting asylum in Islamic Shari'ah and international law.........41 1.1 In Islamic Shari'ah ..................................................................................43 1.2 In International Law................................................................................48 Chapter II: Principles Governing the Right to Asylum in Islamic Shari’ah and international law ...............................................................49 2.1 Difference between the goal of and the principles governing the grant of asylum .........................51 2.2 Salient principles governing the right to asylum ...................52 Chapter III:Types of asylum in international law and in Islamic Shari’ah ........................................................79 3.1 Religious Asylum..............................................................................81 3.2 Territorial asylum ...........................................................................90 3.3 Diplomatic asylum .......................................................................131 Chapter IV: Legal status of refugees in Islamic Shari'ah and international law........................141 4.1. In Islam ……………………….........................…….……………...143 4. 2 In International law…………………..…………..........………175 Chapter V: Impediments to the right to asylum in Islamic Shari'ah and international law………................................………….178 5.1 Ab initio Impediments: Persons not eligible to refugee status…....................................................…180 5.2 Impediments to the continuation (perpetuation) of asylum: Temporary protection........................................201 5.3 In fine Impediments to asylum: Permanent solutions and reasons for cessation of asylum…......…205 Chapter VI: A Comparison between Islamic Shari'ah and international law in the context of the right to asylum…...…233 6.1 Points of agreement (similarities) between Islamic Shari'ah and international law concerning the right to asylum………...........................…..235 6.2 Points of disagreement (differences) between Islam and international law in respect of the right to asylum…………........................................……..236 Conclusion………………….................................................……………………254 References.............................................................................................................267 Arabic References………….......................................................……..269 English and French References…………..........................……..288 Foreword The United Nations High Commissioner for Refugees The deeply rooted Arabic traditions and customs have, for a very long time, served as a solid foundation for protecting human beings and preserving their dignity. Notions such as “istijara” (plea for protection), “ijara” (granting protection), “iwaa” (sheltering) and others are variations on the concept of “protection” which is the heart of the mandate conferred on the United Nations High Commissioner for Refugees. The Islamic Shari’a further consolidated the humanitarian principles of brotherhood, equality and tolerance among human beings. Relieving suffering and assisting, sheltering, and granting safety to the needy, even enemies, are an integral part of Islamic Shari’a, which preceded by many centuries current international human rights treaties and norms, including the right to asylum and the principle of non-refoulement, which are designed to preserve the refugee’s life and ensure his or her well-being. The Islamic Shari’a addressed the issue of asylum explicitly and in detail, and guaranteed safety, dignity and care for the “musta’men” (asylum-seeker). Moreover, Islamic society followed specific procedures in responding to asylum requests. Hence, the return, or refoulement, of the “musta’men” was prohibited by virtue of Shari’a. Today, what is known as non-refoulement constitutes the cornerstone 3 of international refugee law and relies on this very same principle. The custom of “aman” (safety) implies the protection of asylum-seekers, whether they are believers or non-believers. This is clearly stated in Surat “Al-Tawba” (repentance)): “And if anyone of the Mushrikin (polytheists, idolaters, pagans, disbelievers in the Oneness of Allah) seeks your protection, then grant him protection so that he may hear the Word of Allah (the Qur’an), and then escort him to a place where he can be secure, that is because they are men who know not”.(Ayah (verse) 6) The “istijara” featured as an overall umbrella for the asylum seeker, his or her family and property, and was particularly associated with holy places, as Surat “Al Baqarah” states: “And when We made the House (the Ka’bah at Makkah) a place of resort for mankind and a place of safety. And take you (people) the Maqam (place) of Ibrahim (Abraham) [or the stone on which Ibrahim (Abraham) stood while he was building the Ka’bah] as and We commanded Ibrahim (Abraham) and Isma’il (Ishmael) that they should purify My house (the Ka’bah at Makkah)) for those who are circumambulating it, or staying (I’tikaf), or bowing or prostrating themselves (there in prayer)”.(Ayaha 125). Also, the holy Hadith states, “He who enters the holy mosque is safe, He who enters the house of Abu Sufyan is safe; he who drops his weapon is safe; he who stays behind his closed door is safe”.1 As expressed by many scholars, the migration of Muslims to 1 Produced by Muslim in fateh makkah chapter, from kitab al-jihad was-siyar, saheeh al-bukhari 3.-1408 No. 1780, ibn Shaybah and kitab al-maghazi, verified by Dr. Abdul-Aziz al-’Omari, Riyadh, Dar Ishbilia, 1420 AH ( 1990 AD) 4 Abyssinia (Habasha) and the flight of the Prophet, (PBUH), to Medina, to avoid persecution and oppression by the people of Qureish, were acts of mercy. Yet these set an important precedent for the relationship between the asylum-seeker and the asylum provider, whereby the rights of the former are linked to the duties of the latter. More than any other historical source, the Holy Qur’an along with the Sunnah and Hadith of the Prophet of Islam are a foundation of contemporary refugee law. Even though many of those values were a part of Arab tradition and culture even before Islam, this fact is not always acknowledged today, even in the Arab world. The international community should value this 14-century-old tradition of generosity and hospitality and recognize its contributions to modern law. In this solid study the author provides a detailed explanation of Islamic Shari’a and Arab customs, including the standards and norms which underpin the legal framework on which the Office of the United Nations High Commissioner for Refugees bases its activities. The author describes how