Islam, International Law and the Protection of Refugees and IDPs
Hayatli, Musab, Forced Migration Review
Over half of the world's more than 10 million refugees are in Muslim countries while 9 million of the total of over 26 million IDPs worldwide are displaced in the Muslim world, including over 800,000 newly displaced as a result of the 'Arab Spring' uprisings.
The protection of refugees and internally displaced people (IDPs) is guaranteed under International Humanitarian Law (IHL) - mainly the Geneva Convention of 1949 and two additional Protocols of 1977, and the Refugee Convention of 1951 and the Protocol of 1967. In addition there is the broader framework of International Human Rights Law (IHRL), the main inspiration for which is the Universal Declaration of Human Rights (UDHR) of 1948. The UDHR paved the way for the later adoption of human rights treaties - such as, in 1966, the two Covenants on Civil and Political Rights, and Economic, Social and Cultural Rights. There are also subsequent regional and topical instruments and many specific Conventions and international agreements that are relevant to the protection and assistance of displaced people.
Islam requires believers to assist and protect vulnerable people and offers a number of mechanisms for their care and support. However, Islam and Islamic shari'a do not offer a comprehensive legal system for the protection of refugees and IDPs, at least not according to current understanding of protection. For example, while there is a right to seek asylum, exemplified most notably by the Prophet's migration to Medina to avoid persecution, there is no overtly stated obligation on the part of Islamic states, in shari'a at least, to provide asylum.
There has in recent years been some debate about the UDHR in the Islamic world, mainly on the issue of whether it is compatible with shari'a. Some human rights advocates, both Muslim and non-Muslim, fear that Islam, or at least shari'a as practised, might be incompatible with human rights, or with the UDHR, and therefore with IHRL. Some Muslims, on the other hand, argue that the UDHR is in direct conflict with some principles of shari'a law and thus unsuitable for the Islamic world.
Perhaps the most fundamental difference between an Islamic and an internationalist point of view of human rights lies in the concept of rights itself. While the UDHR stresses the universality of human rights, Islam recognises two types of rights: rights that humans are obliged - by virtue of being the creations of God - to fulfil and obey; and rights that they are entitled to expect from their fellow human beings. It is the latter that correspond to what are elsewhere termed 'human rights'. The former are rights that stem from, and are obtained through, belief in God and religion. In this concept only God truly has rights and the rights of humans are understood as their obligation to abide by God's commands. They are, first and foremost, the rights of individuals to abide by and adhere to the laws that God decreed and are only possible through this belief system, thus excluding non-Muslims.
Another potentially difficult point to reconcile is the principle of equality between men and women. The UDHR affirms unconditionally complete equality between the sexes. Under shari'a law a woman can expect to be provided for, while men expect to inherit twice as much as the woman. In the situation of the rights of restitution of property to refugees, for example, this would raise questions, such as what the implications are for the many female-headed households trying to survive or rebuild lives and livelihoods after conflict and displacement.
Islam does offer an array of rights that humans, by virtue of being human, are entitled to and which, from a modern perspective, seem no different from many of the rights listed in the UDHR. …