The basic rights of the minorities in International law and the Dhimmis in shariah : a comparative study

Abstract

From earliest recorded times, mistreatment by States of their minorities has been a fertile source of domestic and international conflict. Current news headlines-reporting ethnic, racial and religious disturbances in the former Soviet Union and Eastern Europe, the Middle East, Africa, India and Southeast Asia- show that these problems have not gone away. Thus the protection of the minorities has been one of the oldest concerns of international law. International law has been a protective instrument because the minority question has never contained itself entirely within national boundaries. However, though many international treaties and resolutions of United Nations and other international bodies provide various rights to minorities, but there still exist uncertainty and doubt about the present status of international law concerning the basic rights of the minorities. Islam, on the other hand, has laid down universal fundamental rights for humanities which are to be observed and respected in all circumstances. Islam has also laid down certain rights for the dhimmis who may be living within the Islamic State and these rights necessarily form part of the Islamic constitution. But nonetheless, the opponents of Islam criticize the position taken by the Shariah viz-a-viz the status of non-Muslims in an Islamic state. Hence when the question of Islamic State arises, some non-Muslims express concern by saying that Shariah does not provide basic rights to them and fear that they would be subjected to deprivation of basic rights and violation of human rights. Hence, this dissertation is a library based doctrinal study having the following main objectives: (i) to examine and evaluate the basic rights of the minorities as found in international law; (ii) to investigate and examine whether Shariah provides such basic rights to the dhimmis; (iii) and finally to point out differences if any between the approach of international law towards the minorities and that of the Shariah towards the dhimmis. ii The study is divided into six chapters: (1) the concept of the minorities in international law ; (2) historical background and the evaluation of the protection of the minorities in international law; (3) the basic rights of the minorities in international law; (4) the concept of the dhimmis in Shariah; (5) the basic rights of the dhimmis in Shariah; and (6) concluding remarks. The study ends up by making the following conclusions: (1) although minorities are the oldest concern of international law but the attitude of international law towards the minorities has not been uniform; (2) examination and consideration of the international documents and customary principle show that the present regime of international law does provide the following basic rights to the minorities: the right to physical existence; the right to non-discrimination and equality; the right to profess and practice their religion; the right to use their language and the right to enjoy their culture. (3) but international law still faces the problem of effective enforcement and implementation of the above basic rights as it still has failed to contain detailed rules for the protection of minorities in any universal binding convention; (4) Islam on the other hand is a religion of peace and thus tolerance towards the dhimmis has always been one of the fundamental norm in Shariah; (5) examination of the Quranic provisions, traditions of the Prophet ( s.a.w.) and practice of the Guided Caliphs clearly show that Shariah provides and guarantees the above basic rights to the dhimmis. In fact Shariah recognized these fundamental rights long before these were found in international law; (7) there are however some points of difference between the approach of international law towards the minorities and that of Shariah towards the dhimmis with respect to the followings: origin of the sources; bindingness of the provisions, basis of the classification of the citizens and also pertaining to the permanency and uniformity of the approach; (8) finally, non-Muslim communities have no valid reason to fear the adoption of the Shariah law of Islam as Shariah has certainly provided the basic framework of an Islamic system in which Muslims and non-Muslims can live together in peace, harmony, and security.