The Muslim world is now a world of conflict and forced migrants (Dar al harb wa al muhajirun). Asylum and “refuge-seeking” are two important themes in Islamic history. Islamic theory and teachings relating to refugees and forced displacement are known as hijrah law. It is quite different from modern refugee law. It arguably gives more protection to asylum-seekers and refugees (mustaminun). However, hijrah law is rarely referred to or invoked today. If they were taken into consideration, it could contribute greatly to the protection of the forcibly displaced. It might also reduce the numerous problems refugees all over the globe are facing.

1. ASYLUM IN ISLAM AND IN MODERN REFUGEE LAW
Khadija Elmadmad*
The Muslim world is now a world of conflict and forced migrants (Dar al harb wa al
muhajirun). Asylum and “refuge-seeking” are two important themes in Islamic
history.
Islamic theory and teachings relating to refugees and forced displacement are
known as hijrah law. It is quite different from modern refugee law. It arguably gives
more protection to asylum-seekers and refugees (mustaminun). However, hijrah law is
rarely referred to or invoked today. If they were taken into consideration, it could
contribute greatly to the protection of the forcibly displaced. It might also reduce the
numerous problems refugees all over the globe are facing.
1. Introduction
Islam is a religion and a way of life. In Islamic communities, Islamic law
regulates the private relations of Muslim individuals and of public life and
administration, notably the relations between Muslims and non-Muslims and
the protection of foreigners, including refugees and asylum-seekers. The word
“Islam” comes linguistically from the Arabic verb aslama, meaning submission to
Allah (God). Islam was revealed to the Prophet Muhammad who lived from 570
to 632 C.E. in the city of Mecca (in present-day Saudi Arabia). Islam also refers
to the Muslim world. This Muslim world is composed of all Muslim States and
of all the Muslim minorities living in non-Muslim States.
The Muslim States are gathered today in an international organization
known as the Organization of the Islamic Conference (OIC), which was set
up by the Kings and Heads of State and Government of the Islamic States in
1969. At present, there are fifty-seven Muslim States located in Africa, Asia, and
Europe. But Muslims are found all over the world and in most States.
The division of Islam into the two main sects, the Sunni and the Shiite, goes
back to the issue of the succession of the Caliphs (the successors of Prophet
Muhammad) in the first century of the Islamic calendar. Shiites believe that the
true authority and leadership of Muslims after Muhammad’s cousin and son-in-
law, Ali, continued through the line of imams or religious teachers. Sunnis,
however, believe in the supremacy of the Caliphs, who are the rulers elected
* Khadija Elmadmad is a Law Professor, an Advocate and International Consultant. She is the holder of the
UNESCO Chair “Migration and Human Rights”, the Chair of the Rabat NGO Migration and the Law and
the Chair of the Moroccan Network of Experts in Refugee Law.
Refugee Survey Quarterly, Vol. 27, No. 2 ß UNHCR [2008]. All rights reserved.
For Permissions, please email: journals.permissions@oxfordjournals.org
DOI:10.1093/rsq/hdn016

2. by the people and mandated to guard the prophetic traditions in the adminis-
tration of community affairs.
Statistics show that Islam is a growing religion. There are approximately
1.3 billion Muslims in the world. More than 85 per cent of Muslims belong to
the Sunni Sect. The Shiite minority is concentrated in Iran and Iraq. Almost
half of all Muslims live in South or Southeast Asia and less than 20 per cent is
Arab. There are estimated 6 million Muslims in the United States, 3 million in
France, 2.5 million in Germany, 1.5 million in the United Kingdom and half a
million in Canada.
In this era of globalization (the “global village”), the Muslim world is a
world of conflict and forced migrants (Dar al harb wa al muhajirun). Forced
migrants are refugees, asylum-seekers, and internally displaced persons (IDPs).
While displaced persons move involuntarily within the national borders of a
country, refugees and asylum-seekers move involuntarily from one country to
another seeking protection from persecution or fleeing insecurity and violence.
They are quite different from people who migrate by choice and move freely and
settle elsewhere within their own country or in another country. Refugees are
governed by refugee law in particular.
Asylum and “refuge-seeking” are two important themes in Islamic history.
Islamic theory and teachings relating to refugees and forced displacement under
what is known as hijrah law are quite different from modern refugee law. Hijrah
law gives more protection to asylum-seekers and refugees (mustaminun), but it is
rarely referred to or invoked today. If it were taken into consideration, it could
contribute greatly to the protection of the forcibly displaced. It might also reduce
the numerous problems refugees all over the globe and particularly in the
Muslim world are facing. Islam could then be understood and considered dif-
ferently. This might both reduce the growing “Islamophobia” and lead to the
amelioration and globalization of refugee rights.
First, we will look at Islamic teachings relating to forced migration
(including refugees) and compare them with the theory of modern international
law on refugees. After examining the situation of Muslim refugees today, we will
examine how Islamic law on forced migration could contribute to the advance-
ment of migration law in a world becoming more and more a world of “the
uprooted”. Uprooted persons very often lack comprehensive and effective
protection.
2. Hijrah and modern law on asylum and refugees
The Islamic concepts of hijrah (migration/forced migration) and muhajirun
(migrants/refugees) are taken from both the Judaic and Christian laws regarding
“sojourners” and “aliens” and from pre-Islamic traditions of hospitality and
reception of strangers in the Arabian Peninsula.
Hijrah theory follows and further develops teachings about forced migra-
tion introduced by the other two monotheist religions: Judaism and Christianity.
In fact, in Judaism, Christianity, and Islam, asylum has specific importance.
52 Khadija Elmadmad

3. All three founders, Moses, Jesus Christ, and Muhammad, experienced exile and
sought asylum in foreign communities. In the three monotheist religions, asylum
represents an act of love of one’s neighbour and of help to needy people. The
concept of asylum in Islam is not very different from the notion of sanctuary
found in the other two monotheist religions. Unlike in Islam, however, protec-
tion of refugees in Judaism and Christianity was not given formal legal status and
was limited in scope.1
Islamic asylum (hijrah) law is quite advanced; even argu-
ably more so than modern refugee law.2
The word hijrah comes from the Arabic word hajara which means to
abandon, to break ties with someone, or to migrate, and asylum is very impor-
tant in the history and law of Islam. It is linked with the obligation to search for
security and protection. The concept of hijrah is primarily discussed with refer-
ence to the Prophet Muhammad’s persecution and flight in 622 C.E. from the
city of Mecca to Yathrib (now called Medina). Thus, the Muslim era starts not
with the Prophet Muhammad’s birth or the date when he received the Islamic
message, but with his hijrah to Medina.
The Islamic concept of hijrah is broader than the definition of refugees
given in article 1 of the Geneva Convention relating to the Status of Refugees of
28 July 1951.
This article describes refugees only as persons forced to flee persecution for
specific and limited reasons and who otherwise would not have found it neces-
sary to cross national borders.This Convention, which now represents the uni-
versal charter of refugee law, defines a refugee as 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; or who, not
having a nationality and being outside the country of his former habitual
residence as a result of such events, is unable or, owing to such fear, is
unwilling to return to it.3
In Islam, asylum is a right, a duty, and a general and comprehensive form of
protection. It is religious but it is also territorial and to some extent diplomatic.
No modern international or national instrument stipulates clearly that individ-
uals have the right to grant or to be granted asylum. All modern texts reserve this
right for the State, which is free to grant or refuse asylum to those who seek it.
1
K. Elmadmad, “Asylum in Islam, Judaism and Christianity”, Africa Legal Aid Quarterly, Jan-March, 1998,
26–9.
2
K. Elmadmad, “L’asile et les re´fugie´s dans la tradition musulmane”, Report of the Committee on Islamic Law
and International Law, 69th Conference of the International Law Association, 2000.
3
See also K. Elmadmad, “An Arab Convention on Forced Migration: Desirability and Possibilities”, Int J
Refugee Law, Vol. 3, No. 3, 1991, 461–81 and K. Elmadmad, Asile et Re´fugie´s dans les pays afro-arabes,
Casablanca, Eddif, 2002, 64–92.
Asylum in Islam and in Modern Refugee Law 53

4. Nationals cannot choose their foreign hosts and expect them to grant protection,
even if they are from the same origin but with different nationalities. Today, only
the State has the right to decide to whom refugee status will be granted.
In Islamic law and traditions, any person (even a non-Muslim) fleeing
and seeking protection has the right to enter an Islamic community and ask
for protection (aman). This person can seek asylum from State leaders or from
common individuals (men or women, Muslims, or non-Muslims) living within
the Islamic community or dar al-Isla (the world where Islamic law applies).
These individuals have the right to protect asylum-seekers equally.
In a sense, seeking asylum is a duty. Muslims are not obliged to live in places
where there is injustice and persecution and they are urged by Islam to leave
these places and seek protection elsewhere.4
Moreover, Muslims cannot close their doors to persons seeking protection.
It is their duty to grant asylum. It is the duty of the political leaders of the Islamic
communities, but it is also the duty of any person living in dar al-Islam, regard-
less of race, sex, social, or political status.
All forced migrants who are in need of protection should be granted
aman (refuge or asylum) if they seek it. They can seek asylum from within
dar al-Islam. They may also come from dar al-harb (the world where Muslim
law does not apply). Muslims are encouraged to protect non-Muslim
asylum-seekers as a way of introducing them to Islam. Non-Muslim refugees,
however, are not obliged to adopt Islam and, as is clear in verse 6 of Surah
Al-Tawbah of the Quran, are granted the status of “protected persons” in dar
al-Islam.
Asylum-seekers are not even obliged to prove that they have been persecuted
before fleeing and should be granted asylum only upon their own request.
However, asylum-seekers should not have committed crimes before seeking
asylum, as all crimes should be punished, and there is no distinction in Islam
between political and non-political crimes.5
Once granted, protection or aman should be general, and refugees should
benefit from all of the rights guaranteed to nationals, including the right to work,
to education, to free movement, and to family reunification. According to most
Islamic schools of thought, aman is not limited in time. The departure of the
“protected” or mustaman from dar al-Islam or the place of his/her permanent
stay will depend on the individual’s decision. This is the equivalent of voluntary
repatriation in modern international refugee law.
Islam reaffirms old Arab traditions and customs relating to granting asylum
and refugee status (al-himaya in Arabic) and adopts principles relating to the
granting of religious asylum or sanctuary. Some places kept their pre-Islamic
sacred characteristics (such as the Kaabah in Mecca), and others became sacred,
such as the cities of Mecca and Medina, the house of the Prophet and the houses
4
See the Quran 4:100 (Surah Al-Nisa).
5
See the Quran 5:34 (Surah Al-Ma’idah), except for legitimate self-defence.
54 Khadija Elmadmad

5. of his successors and of religious leaders. Many verses of the Quran recommend
respecting sanctuary.6
Islam reaffirms the tradition of granting territorial asylum by any individual
or by Muslim leaders to asylum-seekers looking for protection. This kind of
asylum was called istijara or talab al-jiwar (asking for assistance from a neigh-
bourhood or assistance from a community).
Islam also reaffirms the pre-Islamic Arab tradition of protecting non-
Muslim messengers and merchants (and their collaborators), who come for a
short period to dar al-Islam. In pre-Islamic times, this kind of protection was
called the protection of the mission, a kind of diplomatic protection in modern
terms. In Islamic theory, in short, asylum is a human right both for asylum-
seekers and for their hosts. By comparison, the protection guaranteed to refugees
and forced migrants under modern law is more limited and restrictive.7
3. Gaps in present-day law on forced migration
Modern law on migration is of two kinds, (1) domestically enacted legislation
regulating immigration and emigration and (2) rules and procedures aimed at
protecting migrants, including forced migrants, and guaranteeing their rights in
host countries.
The first kind of law controls the entry and residence of nationals and
migrants to a given country as well as their departure from that country and
their crossing of its international borders. Such laws also provide for sanctions in
the case of a violation of established rules of immigration or emigration.
The second type of law is mainly found in international instruments relat-
ing to human rights, migrant workers, and refugees. Among these legal docu-
ments are the Universal Declaration of Human Rights of 10 December 1948,
the two international Covenants on Civil and Political Rights and on Economic,
Social and Cultural Rights of 16 December 1966, the 1951 Refugee Convention
and the United Nations Convention on the Protection of the Rights of All
Migrants and the Members of their Families of 18 December 1990 which
came into force on 1 July 2003.8
Migration law could apply to all migrants in a general way. But some of its
instruments specifically concern certain types of people on the move. That is
why, in some situations, we distinguish between the law applied to voluntary
migrants and that applied to forced migrants, and in particular refugees.
6
See the Quran 14:35–36 (Surah Ibrahim) and 2:125 (Surah Al-Baqara).
7
K. Elmadmad, “Asylum in Sharia and in International Law”, in M. C. Bassiouni, et al. (eds.), Human Rights:
Practical Studies on the Arab World, Vol. 2, Beirut, Dar Al ilm lil al malayin, 1989, 108–31; K. Elmadmad,
Asile et Re´fugie´s dans les pays afro-arabes, op. cit. 3.
8
K. Elmadmad, “The Human Rights of Refugees with Special Reference to Muslim Refugee Women”, in
D. Indra (ed.), Engendering Forced Migration: Theory and Practice, Refugee and Forced Migration Studies,
Vol. 5. New York, Berghahn Books, 1999, 261–71.
Asylum in Islam and in Modern Refugee Law 55

6. 3.1. The limitations of modern international refugee law
Modern law on refugees is incorporated in the various instruments relating to
refugee law. These instruments are universal, regional, and national. Modern
refugee law, however, does not consider asylum as a right of individuals; it is the
right of the State only. It does not concern all forced migrants but only a few of
them who are well defined, particularly by article 1 of the 1951 Refugee
Convention, as quoted previously. Many persons are consequently excluded
from its protection and therefore from asylum.
IDPs, who now constitute some 20 million persons, are not as such pro-
tected by international law, as there are no binding legal international instru-
ments relating to them specifically. The Guiding Principles on Internal
Displacement, prepared in 1998 by Special Representative of the Secretary-
General for IDPs, Francis Deng, apply to such persons, but States are not obliged
to adhere to them.
Modern refugee law is quite general and does not include special provisions
relating to some categories of forced migrants that now constitute the majority of
the world refugee population. Some of these refugees need special protection,
namely, women and children. Women, notably Muslim women, have special
needs as refugees, but these are rarely taken into account by modern refugee law
or State practice.9
Furthermore, the protection granted by present international
refugee law openly excludes some categories from international protection.
Article 1 includes a list of persons who are not covered by the 1951 Refugee
Convention. For example, article 1D declares that the 1951 Refugee Convention
will not apply to persons “who are at present receiving from organs or agencies
of the United Nations other than the United Nations High Commissioner
for Refugees protection or assistance”. This is the case of the 3 million
Palestinian refugees who receive assistance (and not protection) from the
United Nations Relief and Works Agency for Palestine Refugees in the Near
East (UNRWA).
3.2. Modern law of asylum is mainly a right of the state
It is necessary to State that refugees are different from foreign persons normally
present in a country. They lack protection from their countries of origin and are
in need of international protection. They are usually fleeing persecution and
insecurity and need to find a safe place to live. That is why they need to be
granted asylum.10
However, no stipulation in modern refugee law declares that to be granted
asylum is a right of asylum-seekers. The 1951 Refugee Convention does not
mention asylum in its provisions. The only universal text that deals with asylum
is the Universal Declaration of Human Rights. Asylum is dealt with in article 14
9
Ibid. and K. Elmadmad, Asile et Re´fugie´s dans les pays afro-arabes, op. cit. 3.
10
K. Elmadmad, “Les re´fugie´s et les apatrides au Maroc: Des e´trangers pas comme les autres”, in Regards Croise´s
sur le Maroc, Mekhne`s, Universite´ Moulay Ismail, 2001, 35–72.
56 Khadija Elmadmad

7. of this Declaration, but this article stipulates, “[e]veryone has the right to seek
and enjoy in other countries asylum from persecution”. The term “enjoy” does
not mean in any case to be granted asylum. The same article adds, however,
that “this right may not be invoked in the case of prosecutions genuinely arising
from non-political crimes or from acts contrary to the purposes and principles of
the United Nations”. But no exact definition of a “political crime” exists in
international law. It is left generally to States to decide on the definition
of political and non-political crimes. But in State practice, a crime is rarely
considered to be political.
Asylum is therefore a right of States, even though some constitutions and
some municipal laws speak of the right of asylum-seekers to be granted asylum.
The State then is free to grant asylum or not. The only obligation for the State
is that an asylum-seeker will not be forcibly returned to any country where
his/her life could be in danger, according to article 33 of the 1951 Refugee
Convention.
Under these conditions, not all forced migrants in the world are now really
protected by modern refugee law. In Muslim States, which since the 1990s have
become the centre of all types of migration, refugees in many cases are neither
protected by the limited modern refugee law nor by the Islamic principles
relating to hijrah and muhajirun. In this age of globalization, there are often
gaps in the legal frameworks of both Muslim as well as non-Muslim States when
it comes to the subject of asylum and the protection of refugees.
4. Conflict and refugees and the Muslim world today
Any present map of world armed conflicts or of persecuted persons will show
without a doubt that the Muslim world is now a world of armed conflicts and
forced displacement, in other words, a “world of wars and of refugees” (dar al
harb wa al muhajirun).
Most Muslim refugees are fleeing violence resulting either from the numer-
ous armed conflicts taking place in Muslim States or from authoritarian regimes.
In fact, armed conflicts are taking place today all over the Muslim world: in
Afghanistan, Algeria, Chechnya, Coˆte d’Ivoire, Iraq, Kashmir, Palestine,
Somalia, and Sudan, among others. These conflicts result in a great deal of
suffering and massive displacement of Muslim civilian populations.
The United Nations High Commissioner for Refugees (UNHCR) reports
that it is now providing protection and assistance to some 22 million refugees
and IDPs. This number includes around 9 million Muslim refugees and IDPs
worldwide, without taking into consideration the Palestinian refugees in
Lebanon, Syria, Jordan, the West Bank and Gaza, who fall within the mandate
of the UNRWA.11
11
See the websites of UNHCR at www.unhcr.org and the International Committee of the Red Cross at
www.icrc.org.
Asylum in Islam and in Modern Refugee Law 57

8. In October 2002, the Representative of the OIC to the 53rd Session of the
Executive Committee of the UNHCR declared that there are:
more than 7 million refugees in the world who were either Muslims or
being sheltered by the Islamic countries. Large number of refugees are
currently being looked after by Iran, Jordan, Pakistan, Uganda, Iraq,
Yemen, Saudi Arabia, Bangladesh, Syria, Kuwait, Lebanon, Indonesia,
Sudan, Albania, Sierra Leone, Azerbaijan, Turkmenistan, Tajikistan,
Uzbekistan, Kyrgyzstan, Kazakhstan, Togo, Senegal, Mauritania, Mali,
Guinea, Gabon, Gambia, Egypt, Coˆte d’Ivoire, Chad, Cameroon,
Burundi, Benin and Algeria.12
The OIC Representative added:
Even though the UNHCR is not mandated to look after the Palestine refu-
gees it is pertinent to refer to the extreme difficulties and plight of the Pales-
tinian refugees. The Israeli occupation and the brutal attacks on Palestinian
refugee camps in the recent past warrant international attention and generous
humanitarian assistance. The issue of their return to their homeland is not
only a pivotal importance in peace in the Middle East but is also one of the
oldest and most serious humanitarian issues of the last 50 years.13
UNHCR statistics show that at the beginning of this century Muslim States
produced and received large numbers of refugees and displaced persons. Thus,
there were more than 3 million Palestinians (who are at the same time refugees
and stateless), more than 2 million Afghan refugees, more than 600,000 Iraqi
refugees, some 90,000 Iranians, some 30,000 Mauritanians, almost 165,000
Saharawis, some 500,000 Somalis, and more than 400,000 Sudanese.14
Muslim countries who are receiving large numbers of refugees include
Pakistan, Iran, Sudan, Yemen, Djibouti, Bangladesh, and others.15
Other
Muslim countries have been lands of asylum and refugees throughout history.
This is the case for Morocco, for example.16
Since the 1990s, armed conflicts have taken place in many parts of the
Islamic world. The conflict in Bosnia and Herzegovinia, for example, was parti-
cularly dramatic. Beginning in 1991, it included a campaign in 1992 directed
against Muslims in Bosnia involving concentration camps, mass murders (espe-
cially of men), and systematic rape of Muslim women. The vast majority of
casualties (approximately 250,000 killed) were civilians. Approximately 800,000
12
Organization of the Islamic Conference, OIC Statement on the Issue of Muslim Refugees and Displaced Persons
at the 53rd Session of the Executive Committee of the UNHCR, Geneva, 30 Sept. to 4 Oct. 2002.
13
Ibid.
14
For these statistics, see UNHCR, Les re´fugie´s dans le monde 2000: Cinquante ans d’action humanitaire, Paris,
Editions Autrement, 2000, 311–13 and 316–19.
15
Ibid.
16
K. Elmadmad, “Asylum in Past and Present Morocco”, J Soc Moroccan Studies, Vol. 2, 1992, 29–34 and
K. Elmadmad, “Les re´fugie´s et les apatrides au Maroc: Des e´trangers pas comme les autres”, op. cit. 10.
58 Khadija Elmadmad

9. Bosnian refugees from this disastrous situation spread to other countries, more
than 200,000 going to the United States.
The inhumane conflicts in Iraq and in Afghanistan and the lack of respect
for international rules and international humanitarian law (or the law of armed
conflicts which requires respect for all civilians) have resulted in great bloodshed
and massive forced displacement. Respect for civilian populations is well docu-
mented in the Geneva Convention relative to the Protection of Civilian Persons
in Time of War of 12 August 1949, which has been ratified by almost all the
nations of the world.
In this situation of forced migration in the Muslim world, the Islamic
theory of hijrah is rarely applied. Muslim States dealing with forced migrants,
whether coming in or seeking to escape, refer to the modern forced migration
law and not to the Islamic principles concerning the protection of forced
migrants. Hijrah law is nearly absent from the laws on migration of most
Muslim States. Few of these States invoke modern refugee law, however. As in
many other parts of the world, refugees in the Islamic region (the unwanted
guests of our time) are very often treated as illegal migrants and sent back to their
countries of origin.
Thus, throughout the world, it appears that the concept of “illegal migration”
is being used in an attempt to stop various forms of migration, including from the
South to the North. With Europe pressuring its southern Mediterranean neigh-
bours, new laws relating to illegal migration and terrorism have been enacted
recently in the South with the aim of stopping this kind of “illegal” South-to-
North migration. This is the case in Morocco, which in 2003 enacted two new
laws on migration and terrorism. These are the 11 November 2003, 02/03 Law on
Entry and Sojourn of Foreigners and on Illegal Migration and the 3 June 2003,
03/03 Law on Terrorism. These new Moroccan laws “criminalize” illegal migra-
tion by including harsh punishments for illegal migrants. Yet many of the migrants
who are considered to be “illegal” (notably sub-Saharans) are in reality asylum-
seekers. Normally, these cases should be examined so that their refugee status can
be determined before they are “criminalized”.
As the International Refuge Rights Initiative has noted:
European pressure on its Southern Mediterranean neighbours to stop illegal
migration has recently gone even further. There are plans to establish refu-
gee and migrant camps on the Southern shore of the Mediterranean Sea,
even though this could be in violation of the Refugee Convention. Libya is
already negotiating the establishment of such camps with Italy. This Libyan
action is opposed widely inside and outside Libya. The Libyan League for
Human Rights, for instance, criticized the negotiations between Italy and
Libya for the creation in Libya of holding (internment) camps for Italy’s
asylum-seekers and refugees.17
17
International Refugee Rights Initiative, “Anywhere But Here: Refugee Processing Centers in Libya”, Refugee
Rights News, Vol. 1, Issue 1, Oct. 2004.
Asylum in Islam and in Modern Refugee Law 59

10. The declaration by the Libyan League for Human Rights, notably, does not
refer at all to Islamic principles on refugees and asylum, even though it is written
in the Libyan constitution that Libya is a Muslim country ruled by Islamic law
(Shariah law).
In Sudan, the present plight of displaced persons in Darfur also illustrates
the lack of guaranteed protection for forced migrants in the Muslim world. In an
article titled “Rape, Islam, and Darfur’s Women Refugees and War-displaced”,
the non-goernmental organizatino Refugees International showed how rape is
used as a weapon of warfare and how social control is conducted and directed by
Muslim men against women in Darfur.18
If this is proved to be true, it contra-
dicts the declarations made by Sudan stating its adherence to Islamic law and
principles.
The case of Afghan refugees can also illustrate the changing attitude of
Muslims towards refugees. In the 1980s, during the battle against the Soviet
occupation of Afghanistan, people in Iran and Pakistan treated Afghan refugees
as brothers and sisters. Then in the 1990s, civil war in Afghanistan continued
to produce fresh waves of refugees, and the sympathy and hospitality shown
toward Afghans gradually diminished. The host countries eventually found the
burden too much and there was no effective international mechanism to
alleviate the pressure. It was not only Iran and Pakistan that decided to step
back but also other Islamic countries where Afghans had fled. New arrivals
were not welcomed, and there was increasing pressure for Afghans to return
to their country.
Few of the Muslim States invoke Islamic principles relating to asylum and
migration in their legislation, even when they declare openly that they are ruled
by Islamic or Shariah law. Practice is also varied, although they sometimes
refer to Islamic principles. This is the case in the Afro-Arab countries. In
Sudan, as in the seven other Afro-Arab countries (Algeria, Egypt, Djibouti,
Libya, Mauritania, Morocco, and Tunisia), national refugee legislation is
modern and follows the 1951 Refugee Convention as well as those of some
regional instruments relating to refugees and human rights, but the practice is
semi-modern and refers to the humanitarian tradition of receiving foreigners and
those in need of protection.19
We can conclude that both the law and practice relating to forced migration
and to refugees in the Muslim world are today far less protective of refugees than
as conceived according to the Islamic hijrah tradition. This tradition has been
abandoned, for no plausible reason, throughout the Muslim world today.
Particularly in this age of globalization, it is a concept that needs to be revived
in order to contribute to the improvement of modern refugee law, to contribute
to its global acceptance, and to make it more protective for refugees and forced
migrants in general. As described in The Age of Migration by Stephen Castles and
18
Available at: www.refugeesinternational.org (last visited 4 Feb. 2008).
19
K. Elmadmad, “Les re´fugie´s et les apatrides au Maroc: Des e´trangers pas comme les autres”, op. cit. 10.
60 Khadija Elmadmad

11. Mark Miller, the Arab region is now “a key migrant sub-system”,20
which is
characterized by “extraordinary deprivation of basic rights”.21
5. How Hijrah law could contribute to the protection of rights
of forced migrants
Globalization is apparent now in many fields: economics, politics, sociology, law,
and particularly human rights principles and norms. But globalization has
resulted also in the globalization of the violation of laws, particularly of
human rights and migration law. Our age has become an age where illegal
migration, trafficking in human beings, exploitation of the vulnerable, organized
crime, and dramatic violence are global phenomena.
Since the 1990s, following the end of the Cold War, the world has been
marked by enormous changes and uncertainty, as articulated by Castles and Miller:
States have imploded and entire regions verge on anarchy and ruin. Yet, at
the same time democratic institutions, liberal economic strategies and
regional integration have been globally ascendant, although still challenged.
The ambivalent nature of the period can be seen in the juxtaposition of
global human rights norms with episodes of horrific savagery involving
mass killings and expulsions of entire populations.22
After the end of the Cold War numerous small armed conflicts based on ethni-
city or religious differences erupted in many countries. These conflicts have
resulted in an increase and a globalization of international migration, often
associated with numerous violations of migrants’ rights.
In the globalized world, both migration processes and lack of respect for
human rights (including refugees’ rights) have developed a kind of immunity to
governmental or international control. The case of Yugoslavia is significant.
As Castles and Miller pointed out:
Throughout the 1990s, the world watched helplessly while Yugoslavia dis-
integrated into warring fragments. Shelling of civilians, concentration
camps and ethnic cleansing became instruments of politics as elites claiming
to represent distinct historical peoples struggled to create new states.
Millions of people sought refuge from the war in nearby countries, which
were reluctant to receive them, because they added to the already insoluble
problems of the European refugee crisis.23
The two themes of migration and globalization are now strongly linked and
constitute important research topics. The study of migration in general and
20
S. Castles and M. J. Miller, The Age of Migration: International Population Movements in the Modern World,
2nd edn, New York, Palgrave Publishers Ltd, 1998, 112.
21
Ibid., 111.
22
Ibid., 1.
23
Ibid., 3.
Asylum in Islam and in Modern Refugee Law 61

12. forced migration in particular is developing worldwide, in Muslim and Arab
regions.24
Today, migration law and migrants’ rights and particularly refugee law
are finally receiving a great deal of attention internationally. Existing practices
concerning migrant protection are no longer suitable for the new situation and
need to be reviewed and improved. Islamic law on migration in general and on
forced migration in particular could contribute much to the reconsideration and
advancement of current laws on migration and refugees throughout the world,
notably in the Muslim world.25
Fieldwork conducted with refugees and their hosts in Sudan in 1993
showed that although the Sudanese law on forced migration was modern, the
practice of the individuals and the State were semi-modern and were greatly
influenced by the Islamic principles relating to hijrah. This finding could
encourage the enactment of a regional (Arab or Islamic) legal instrument
combining modern and Islamic law on forced migration.26
If implemented in
the Arab and Islamic regions, this text could be a model for the rest of the world
and could have an impact on the practice elsewhere, just as some other regional
instruments on refugees have done; these include the Organization of African
Unity (now African Union) Convention Governing the Specific Aspects of
Refugee Problems in Africa of 10 September 1969 and the Cartagena
Declaration on Refugees in Central and Latin America of 22 November 1984.
These regional instruments are more protective of refugees than the 1951
Refugee Convention. They both enlarge the refugee definition included in article
1 of the 1951 Refugee Convention and have therefore allowed better protection
for refugees and asylum-seekers in these regions.27
6. Conclusion
The valuable heritage of Islam in the field of migration law and refugee protec-
tion is in some respects of great significance to the international community. It is
worthy of serious research and assessment. In the past, Islam made a great
contribution to the humanization of internal and international relations in the
Arab and Muslim worlds. It could play this role even today and could prompt
a much-needed humanization of some branches of international law.
But because of developments in the Muslim world and because of the
division of dar al-Islam into many modern States governed in the majority of
cases by modern law and often without any respect for human rights principles,
24
See International Organization for Migration (IOM) and the League of Arab States, Arab Migration in
a Globalized World, Geneva, IOM Publications, 2004.
25
K. Elmadmad, “How Could Islamic Law Contribute to the Development of the Present International Law?”,
in Jordan University and Konrad Adenauer Stiftung (eds), Restarting the Dialogue in International Law,
Amman, Jordan University, 2004, 77–89.
26
Ibid.
27
K. Elmadmad, Asile et Re´fugie´s dans les pays afro-arabes, op. cit. 3, 113–21, 132–34.
62 Khadija Elmadmad

13. the gap between theory and practice is deep in the Muslim world today. This
creates a great deal of misunderstanding about Islam, Muslims, and Islamic law.
After the events of 11 September 2001, Islam and Muslims are sometimes
linked to terrorism, and many are discriminated against, as a result.
But Islam must be evaluated with reference to its principles and humani-
tarian philosophy and not with reference to the conduct of some extremist
Islamic groups or particular political leaders.
Asylum in Islam and in Modern Refugee Law 63