refugee survey quarterly-2008--abd al-rahim-15-23.pdf

8/18/2019 Refugee Survey Quarterly-2008--Abd al-Rahim-15-23.pdf

http://slidepdf.com/reader/full/refugee-survey-quarterly-2008-abd-al-rahim-15-23pdf 1/9

ASYLUM: A MORAL AND LEGAL RIGHT IN ISLAM

Muddathir ‘Abd al-Rahim*

The ethical teachings and juridical principles of Islam – especially with regard to the dignity of humans and the need to protect it under all circumstances – coupled withthe personal example and directives of Prophet Muhammad concerning asylum and the treatment of refugees, led to the development in Islamic civilization of a com-

prehensive and highly sophisticated system of ethical values and legal rules in the context of which the granting of asylum and the protection of both migrants and refugees have been universally and unequivocally regarded as moral and legal obliga-

tions, not only by states and governments, but also by individuals and civil society. Inthis article, it is hoped that the nature and structure of these teachings and principles are clearly, if briefly, explained. Aspects of the practical application of these norms and

principles in history are also highlighted.

One of the most remarkable facets of the rich and highly sophisticated structureof the human rights tradition in Islam,1 is the comprehensive and integratedbody of ethical teachings and legal injunctions pertaining to the protection andtreatment of refugees that is primarily enshrined in the Quran alongside thedirectives and exemplary deeds (that is the Sunnah, in Islamic terminology) of the Prophet Muhammad. As will be presently seen, this body of teachings andinjunctions – both as originally stated in the Quran and the Sunnah, and assubsequently elaborated in the great classics of Islamic law and jurisprudence – ischaracterized by remarkable compassion and practical concern for the interestand welfare of refugees irrespective of differences in race, faith, culture, or socialstatus.

Before proceeding with a discussion of any of the particular details of thesubject under consideration, however, two general but fundamentally important

* Dr Muddathir ‘Abd al-Rahim is a political scientist with special interest in international relations, humanrights, Islamic political thought and institutions, minorities, and inter-civilizational dialogue. Since 1997 hehas been Professor of Political Science and Islamic Studies at the International Institute of Islamic Thoughtand Civilization in Kuala Lumpur, Malaysia. This article is partly based on three of the writer’s earlierpublications: Asylum and Sanctuary in Islam, paper presented at the Seminar on “The Protection of Refugees in Arab Countries”, San Remo, Italy, 16–19 January 1984; “Islam and Questions of Asylum andRefugees”, Islam and Contemporary Social Problems , Amman, Jordan, Jordanian Royal Academy for IslamicCivilization Studies, July 1997; and “The Human Rights Tradition in Islam”, in W. H. Brackney (ed.),

Human Rights and the World’s Major Religions , Vol. 3, Westpoint, Connecticut and London, PraegerPublishers, 2005.

1 See, for example, M. ‘Abd al-Rahim, “The Human Rights Tradition in Islam”, in W. H. Brackney (ed.),Human Rights and the World’s Major Religions , Vol. 3, Westpoint, Connecticut and London, PraegerPublishers, 2005.

Refugee Survey Quarterly, Vol. 27, No. 2 UNHCR [2008]. All rights reserved.For Permissions, please email: [email protected] DOI:10.1093/rsq/hdn029

a t I n t e r n a t i on a l I s l a mi c Uni v e r s i t yM a l a y s i a ( I I UM ) onA pr i l 3 ,2 0 1 6

h t t p : / / r s q . oxf or d j o ur n a l s . or g /

D o wnl o a d e d f r om

http://rsq.oxfordjournals.org/


































points need to be made. First amongst these is that Islam, strictly speaking, is nota religion as the term is generally understood in, for example, modern or con-temporary Western societies, that is, as a basically spiritual relationship betweenhumans and God. Rather, Islam may more accurately be depicted as a religiously

based way of life, or din – the Arabic word by which it is described in the Quranand the Sunnah. The term din signifies a way of life in which the material andthe spiritual do not constitute dichotomous modes of experience, but areregarded as a continuum and an integral whole in which all aspects of life –personal and social, economic and political, artistic and intellectual, spiritual andsexual, creative or otherwise – are not only interrelated, but are also sustained by faith and endowed with religious meaning and ethical significance.2

It should be borne in mind, that for Muslims, the Quran is literally theword of God, the final and most complete message of God to humanity.Together with the Sunnah of the Prophet, the Quran is the spring from whichthe spiritual and ethical teachings of Islam flow. The two, in conjunction, alsoconstitute the legal and juridical foundations of Islam as also of the ummah, orthe universal community of Muslims across time and space.

The ethical teachings and the legal injunctions pertaining to the treatmentof refugees – like those that guide or inform the conduct of Muslims, individu-ally and collectively, in all other aspects of the human experience – are togetherrooted in and, as a matter of principle, guided by the Quran and Sunnah.

The second important preliminary point that needs to be taken into con-sideration before proceeding with any discussion of the subject at hand is that, inIslam – as is indeed the case with the entire system of human rights in Islam –the seeking of asylum and the granting thereof are both anchored in the attributeof human dignity which, according to the Quran, has been gratuitously con-ferred by God “on the children of Adam [entire]”.3 Humans, the Quran pointsout, are creatures of lowly origins, but they have been blessed with many favours.God began the biological creation of humans out of dust and clay; then Hecaused them to be begotten of a humble drop of sperm which was eventually

transformed by God’s love and grace into a new creation, one that was physically and otherwise molded “in the best conformation”.4 At a crucially importantstage in the divine shaping of humans God “breathed into him of His spirit”,5

thus making man a creature truly worthy of being His vicegerent on earth. Among the many favours that He conferred on Adam was that He impartedunto him “the names of all things”6 – namely knowledge and the power of conceptual thinking: a major attribute with which not even the angels had

2 Ibid ., 2.3 The Quran 17:70 (Surah Al-Isra). For English translations from the Quran in this article, M. Asad’s The

Message of the Qur’an, Gibraltar, Dar al-Andalus, 1980 and M. A. A. Haleem’s The Qur’an: A New Translation, Oxford’s World’s Classics, Oxford University Press, 2005, have been used, at times incombination.

4 The Quran 95:4 (Surah Al-Tin).5 The Quran 15:29–32 (Surah al-Hijr ), 31:9 (Surah Luqman); 23:12–14 (Surah Al Mu’minun).6 The Quran 2:30 (Surah Al-Baqarah).

16 Muddathir ‘Abd al-Rahim






































been blessed.7 One of the greatest blessings that God has graciously conferred onhumanity in addition, and one that is certainly more germaine to the dignity which He conferred on the children of Adam entire, is that of moral autonomy or freedom of choice and conscience. Thus the evidently unparalleled Quranic

ruling that “there shall be no compulsion in matters of faith”8 absolutely over-rules coercion in religious matters, and Prophet Muhammad was accordingly instructed in the Quran to say “The truth [has now come] from your Sustainer;let then, him who wills, believe in it, and let him who wills, reject it.”9

The freedom of choice that has thus been given to humans sets them apartfrom all nature. For while the heavens and the earth and all that is in betweenand beyond behave in accordance with set laws from which they cannot escape ordeviate, humans have been given the ability to freely choose between belief anddisbelief, good and evil, right and wrong. While the heavens and earth and themountains, along with the rest of nature, are thus involuntarily Muslim(meaning obedient to God and acting in accordance with His will), thechallenge – and the potentially great achievement – of humans is to voluntarily become Muslim, thereby fulfilling their potential as moral agents, by a consciousand free choice of truth as against falsehood and good as against evil.

A point of fundamental importance throughout is that all these favours –along with innumerable others with which humans have been blessed – have,according to the Quran, been conferred on the children of Adam, not because of

their brilliance, distinguished services, or even because they happened to bebelievers and good people, but merely because they are human. In the wordsof Al-Alusi, one of the major commentators on the Quran in Arabic in recenttimes, human dignity, nobility and honour have been conferred on all of human-kind: “the believers among them and the non-believers, the pious and the sinnersalike”.10

It should be obvious therefore that, consistently with the teachings of theQuran, it is a moral as well as a legal obligation on all discerning persons,especially Muslims, of course – be they individuals, groups or states and govern-

ments – to treat all human beings, including refugees, and irrespective of differ-ences in faith, race, culture or social status, with respect and due considerationfor the rights and dignity which have been conferred on them by the Lord-Creator of one and all. A necessary corollary of this categorical imperative is thatany oppression or maltreatment of human beings offends not only the individ-uals or groups directly concerned, but also humanity at large and, indeed, theLord-Creator Himself. Not surprisingly therefore the Quran repeatedly andemphatically calls upon Muslims not only to desist from committing acts of oppression and injustice against people but also, and no less importantly, toactively and steadfastly resist such acts, whether the dehumanizing practices in

7 The Quran 2:30-34 (Surah Al-Baqarah).8 The Quran 2:256 (Surah Al-Baqarah).9 The Quran 18:29 (Surah Al-Kahf ).10 A. Alusi, Ruh al-Ma ani fi Tafsir al-Qur’an al- Azim, Vol. 15, (n.d.), 117.

Asylum: A Moral and Legal Right in Islam 17






































question happen to be perpetrated against themselves or against others. Itemphatically and almost vehemently asks:

how could you refuse to fight in the cause of God and of the utterly helpless

men and women and children who are crying: Our Sustainer! Lead us forthto freedom out of this land whose people are oppressors, and raise for us,out of Thy grace, a protector, and raise for us, out of Thy grace, one whowill bring us succour.11

No less significantly, the Quran then describes those who resign themselves topassive acceptance of oppression and humiliation as people “who have wrongedthemselves”. For, the argument continues, if they happened to be too weak toput up effective resistance to tyranny and injustice, they should leave those lands(or homes) in which they would otherwise be deprived of the dignity and free-dom which define their very existence as humans. For, after all, the Quranrepeatedly points out, planet earth which God has created for all mankind isso spacious and furnished with such resources that all those who strive in con-scious devotion to God and with intent to abide by divine guidance will be ableto find other lands (or homes) in which they can then live in dignity andfreedom – as they were meant to do by their Creator and Sustainer from thevery beginning. In the words of the Quran itself:

When the angels take the souls of those who have wronged themselves [theangels] will ask, “What was wrong with you?” They will answer, “We weretoo weak and oppressed on earth.” [The angels] will then say: “But wasGod’s earth not spacious enough for you to migrate to some other place?”. . . Anyone who migrates for God’s sake will find many a refuge and greatplenty on earth.12

Another Quranic verse states:

As for those who migrated in God’s cause after being wronged, we shall give

them a good home in this world, but the reward of the hereafter will be fargreater, if they only knew it. They are the ones who are steadfast and puttheir trust in their Lord.13

Yet another verse says:

As for those who migrate (and strive) in God’s sake, and are then killed ordie – God will most certainly provide for them a goodly sustenance [in thelife to come] for, verily, God – He alone – is the Best Provider. He will mostcertainly admit them to a state [of being] that will please them well.14

11 The Quran 4:75 (Surah Al-Nisa’ ).12 The Quran 4:97 (Surah Al-Nisa’ ).13 The Quran 16:40 (Surah Al-Nahl ).14 The Quran 22:57–58 (Surah Al-Hajj ).







































Abiding by these and similar teachings of the Quran, Prophet Muhammadand his companions, having steadfastly withstood merciless persecution forsome 13 years (from about 610 C.E.) during which they patiently and peacefully continued to preach the basics of Islam at Mecca, then resolved to leave their

intransigent and increasingly hostile homeland. First, a group of about seventy men and women, including one of the Prophet’s daughters and her husband,proceeded to Abyssinia where, in the face of considerable diplomatic pressureon the part of the Meccans, the Christian Negus welcomed the Muslim immi-grants as bona fide refugees to whom he accordingly extended his full protection.Meanwhile the Aws and Khazraj clans of Medina, an agricultural oasis about300 kilometres to the north of Mecca, had begun to increasingly embrace Islamand thus welcome Muslim migrants and refugees from Mecca as brothers and

sisters in faith and destiny. In 622 C.E. Prophet Muhammad himself, accompa-nied by his closest friend, Abu Bakr al-Siddiq, undertook the epoch-making hijrah, or migration, to Medina: an act which resulted, inter alia, in the creationof the first characteristically multi-ethnic and multi-religious Islamic State, whichthen proceeded to receive many migrants and refugees and proved to be a decisive landmark in the history, not only of Islam and Muslims throughoutthe world, but also of much of the rest of humanity around the globe. Notsurprisingly therefore the day of the Prophet’s hijrah to Medina – neither hisbirthday, nor the commencement of the revelation of the Quran, nor his entry in

due course into Mecca as the magnanimous conqueror – was adopted, only a few years after his departure from this world in 632 C.E., as the beginning of the Muslim calendar and the Islamic way of reckoning of time across the ages.15

By the same token, and equally unsurprisingly, the teachings of the Qurantogether with the personal example of the Prophet and his companions concern-ing the seeking of asylum by Muslims – under certain circumstances – on theone hand, as well as the granting of protection and asylum to migrants andrefugees by Muslim States and societies on the other, have since emerged not

only as integral parts of the comprehensive system of ethical and juridical teach-ings of Islam as a universal mission, but also as a prominent feature of theMuslim way of life throughout the ages and around the globe. It is to thisthat we now turn.

The linchpin of the entire corpus of teachings and laws concerning refugeesin Islam is the passage in chapter nine of the Quran (Surah Al-Tawba, 9:6) whichstipulates that: “. . . If any [one, even] of the idolaters seeks thy protection, granthim protection [forthwith] . . . and then convey him to a place where he canfeel safe . . .”

This divine command, especially when considered in the context in which itoccurs in the Quran, clearly means – and has been consistently thus understood

15 Among the best and most accessible short studies of Prophet Muhammad are M. Lings, Muhammad – His Life Based on the Earliest Sources , London, George Allen and Unwin, 1983; K. Armstrong, Muhammad – A Biography of the Prophet , London, Victor Gollancz, 1991, and Phoenix Press, 2001; and M. H. Haykal,The Life of Muhammad , trans. Ismail Raji al-Faruqi, Kuala Lumpur, Malaysia, Islamic Book Trust, 2002.







































by successive generations of eminent Muslim scholars and jurists throughout theages – that protection should, without delay, be extended to all who request it, of whatever faith, creed, culture, or origin they may be – even if they happened tobe unbelieving enemy soldiers who had until then been actively engaged in

fighting against Muslims. In the late Professor Hamidullah’s succinct phrase,which effectively summarizes the detailed writings of such classic scholars andcommentators on the Quran (mufassirun) as al-Tabari , al-Qurtubi , and al-Razi ,the Quranic passage in question simply means that “if any human being asks forasylum, it can on no account be refused”.16

Two expressions in the said Quranic passage are of pivotal importance andcall for some brief elaboration. First among these is the original Arabic term forthe key concept of seeking protection, namely, istijara, which is twice used at thebeginning of the Quranic passage in question, “. . . If any [one, even] of theidolaters seeks your protection, grant him protection [forthwith]”. This term,istijara, which literally means seeking to become someone’s neighbour, is a metaphorical expression denoting a demand for protection. It echoes the ancient Arabian custom of honouring and protecting a neighbour to the best of one’sability.17 The cognate term ijara on the other hand is the act of giving protec-tion – or asylum. Like several concepts and practices of ancient Arabian origin –such as hospitality, valour, and chivalry – which were found to be consistentwith the values and principles of Islam, ijara, and istijara (that is, demanding

protection and the granting of protection) were strongly endorsed by Islam. Incontrast, others – including, for example, gambling, racial arrogance, infanticideand the consumption of intoxicants – which are at variance with the principlesand teachings of Islam have been uncompromisingly condemned and rejected.

The second expression of key importance in the Quranic passage underconsideration relates to the concluding phrase thereof, “. . . then conduct him[that is, the asylum-seeker] to a place where he can feel safe”. The original Arabicterm for this is maman (of which is derived the cognate term aman), meaning safe-conduct, sanctuary or the right to temporary residence, in due course

became the standard technical term universally recognized as such and com-monly used by Muslim scholars, jurists and administrators as the official orlegal instrument by means of which protection is extended, not only to refugeesand asylum-seekers, but also to foreign traders, tourists, diplomats, and visiting scholars.

Two distinctive features of the traditional Islamic system regarding thetreatment of refugees are indicative of its expansive and remarkably generousnature and are worthy of special note at this juncture. First amongst these – andone which would seem to be almost incredible by the common standards and

practices of today but was perfectly normal and acceptable in the Islamic tradi-tion going back to Prophetic times and before then – is that aman, or safeconduct, could be granted to asylum-seekers and others, not only by government

16 M. Hamidullah, The Muslim Conduct of State , 7th edn, Lahore, Sh. Muhammad Ashraf, 1973, 75.17 M. Asad, The Message of the Qur’an, op. cit. 3, 256.







































officials and accredited representatives of the state, but also by members of civilsociety, ordinary men and women, and even, according to several classic jurists,by discerning children.18

The second distinctive feature in question is that, the conferring or granting

of aman or safe conduct did not have to be documented whether in Arabic orany other language. It could be given by word of mouth or even by a gesturesignifying approval or consent to a given request for aman. 19

Regardless of the methods or modalities whereby safe conduct was granted,persons who were given aman – whether they were refugees or others – werecollectively described as mustaminun (mustamin, in singular form).

As such, mustaminun in general, and refugees in particular, would beentitled, in traditional Islamic States and societies, to a number of crucially

important rights and privileges – all of which are based on the teachings of Islam as enshrined in the Quran and the Sunnah.First amongst these is the right to protection and personal safety – ijara and

aman – for asylum once granted cannot ordinarily be revoked or withdrawn. Thecardinal principle of non-refoulement is thus unequivocally upheld. Should a refugee subsequently wish to leave a country’s jurisdiction, the authorities incharge would be ethically and legally obliged – in accordance with the Quraniccommandment already discussed – to conduct him or her to a place where he orshe would feel safe.

Apart from this option – resettlement in a third country where they wouldfeel safe – refugees in the Islamic tradition also had access to the two other

durable solutions that are known to us today, namely, voluntary repatriation,as it is now known, along with the option of local integration in the country which gave them asylum and aman in the first place.

In this latter case, refugees – like other permanently resident non-Muslimmembers of Dar al-Islam (that is, the Abode of Islam or Pax Islamica), would, of course, continue to enjoy protection and safety, aman, as a matter of basic rightguaranteed for one and all under Islamic law. They will have the right to work,and their property and monies will be safeguarded. They will be free to practisetheir faith(s) unmolested and will also have the right to marry and to raise theirchildren, if any, in their own faith(s) as they may see fit. This is a furtherreaffirmation, as Muhammad Asad reminds us, of the Quranic injunction that“there shall be no compulsion in matters of faith”20 and a cardinal tenet in theteachings of Islam as well as an evidently unique and unparalleled injunction inthe sacred texts of other world religions.

18 These points are discussed in considerable detail in such classic works as Al-Sarakhsi’s Al-Mabsut ; Al-Shaybani’s Kitab al-Siyar al-Kabir and Al-Kasani’s Badai al-Sanai . These are all used and discussed,along with many others, by M. Hamidullah.

19 Ibid .20 M. Asad’s comment on Quran 9:6 (Surah Al-Tawba), op. cit . 3, 256 of The Message of the Qur’an. For a more

detailed discussion of the rights and life experience of non-Muslims in Islamic states and societies seeM. ‘Abd al-Rahim’s, The Human Rights Tradition in Islam, op. cit . 1 – especially in chapters three and four.







































Guided and inspired by the above indicated teachings and principles, it isnot surprising that Muslim societies and States around the globe have continuedto welcome successive waves of immigrants, both Muslim and non-Muslim,down the ages. This process goes back to the epoch-making arrival of Prophet

Muhammad and other immigrants from Mecca in Medina in 622 C.E. and hascontinued until recent times when the people of Malaysia welcomed survivors of so-called ethnic cleansing in Bosnia, giving them protection in their homelandtens of thousands of miles away from the theatre of savage massacres in the heartof Europe.

In between these two events, three sets of events at different times andlocations serve to illustrate the development in history of the Islamic traditionregarding the treatment of refugees across time and space.

First amongst these was the collapse on 2 January 1492 of the Kingdom of Granada, the last Muslim foothold in the Iberian Peninsula at the hands of the Western crusaders from Aragon and Castile led by Ferdinand and Isabella. Thiswas followed 2 months later by the eviction of the Jews at the hands of the twoCatholic monarchs, as Ferdinand and Isabella were known. Banished fromSpain, large numbers of the Iberian Jews then took refuge in various parts of the Muslim world from Morocco and North Africa through Egypt to Syria andPalestine and, in due course, in Constantinople and other parts of the extensiveOttoman Empire from the Balkans to Iraq and elsewhere.21

Second, massive flows of refugees – Jews, Christians, and Muslims – fromthe Crimea, the Caucasus, and Central Asia were later received in various parts of the heartlands of the Muslim world in consequence, first, of Russian imperial

expansion in these territories, especially from the time of Ivan the Terrible(1530–84), and later, as a result of the Bolshevik Revolution of 1917 and thelaunching thereafter of a 70-year long campaign of militant atheism during which followers of all Abrahamic faiths were subjected to the rigours of “a sustained offensive against religion on a scale unprecedented in history”.22

The third illustrative case is that of the Sudan during the 1970s and 1980s.One of the least developed countries in the world and one which has moreoverbeen afflicted by prolonged instability and civil conflict, Sudan had neverthelesscontinued to receive large numbers of refugees, from Chad to the west, Uganda and the Congo in the south and, especially, from Ethiopia to the east.By the mid-1980s the number of refugees across the country was well inexcess of 1.5 million while those in the eastern region bordering Ethiopia accounted for 30 per cent of the region’s population.

In 1974, regardless of the obvious challenges involved, Sudan promulgated

a law pertaining to the regulation of the affairs of refugees in the country, article 7

21 See, for example, H. Kennedy, Muslim Spain and Portugal, a Political History of al-Andalus , Longman,London and New York, 1996; J. F. O’Callaghan, A History of Medieval Spain, Cornell University Press,Ithaca and London, 1975; and S. J. Shaw, The Jews of the Ottoman Empire and the Turkish Republic ,Macmillan, London, 1991.

22 S. P. Ramet (ed.), Religious Policy in the Soviet Union, Cambridge, Cambridge University Press, 1993, 3.







































of which obliged the state minister in charge of refugee affairs and all othersconcerned to give precedence to international laws and conventions to whichSudan was party wherever there appeared to be a conflict or inconsistency between the national and international laws and conventions in question.

Not surprisingly therefore, and in contrast in particular with the fact that severaldeveloped countries frequently failed to honour their international obligationsby denying asylum to refugees, Sudan’s policy towards refugees was oftendescribed as one of the most liberal in the world,23 while its 1974 legislationon the subject was described by a distinguished Swedish lawyer and descendentof Alfred Nobel as a model which other countries would do well to emulate.24

Needless to say, however, the laws and policies, which have understandably continued to attract so much attention – whether in the case of Sudan or inother societies around the globe whose life styles and worldview have been to a greater or lesser extent touched by Islam – are, in large measure, reflections of the ethical and juridical teachings of a faith system and a way of living, whichis characterized by profound human compassion and practical concern forthe interest and welfare of all humans – including, especially, refugees andother disadvantaged persons, wherever and whenever they may be found.

23 M. ‘Abd al-Rahim, Asylum and Sanctuary in Islam, paper presented at the Seminar on “The Protection of Refugees in Arab Countries”, San Remo, Italy, 16–19 January 1984.

24 P. Nobel, Refugee Law in the Sudan, Scandinavian Institute of African Studies, Uppsala, Sweden, 1982, 1.





































refugee survey quarterly-2008--abd al-rahim-15-23.pdf

Documents