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_ ,., tla.it.tr • ' • ' MINORITY RIGHTS Islamic Jurisprudence w• ~.~~'>
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MINORITY
RIGHTS
Islamic Jurisprudence
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M inority Ri ghts

Author: A.6. Amid Zanjani Publisher: International Publishing Co.

P.0.Box: 141 55/6319

Tehran, Islamic Republic of Iran

Print: 1st edition

1997/l 418

All Rights Reserved

ISBN: 964-304-060-7

l\'1i11ul'icy Hii:,hts

Table ofContents

Page

1i-no0UC110NT0 THE·nuRo Eomoi; ••

•••••••

The qut!~tiPn of 1·e/iglo ui 111i1101'liie.s 1n 1/Jc pl1n fo1 · th e big house fl/ Islam

1

I

CHAPTER ONE

Error! Bool:mMk 1101 dcOned

THE 0Et'l:

"ICU.F.~A

UL1'1S

I 3

A

S V!WP.YOl'Tt/6 PO SITWf: I Nl'Wl'/,1T/ONAl. /

AIPS

.

13

'llJc i \11i1 n 1'1°l1<: s Dcli:r1c~lc:,·~·Alic:11s

 

I J

Memiing of 'A /i<D

.• 14

Aliens 1'n 1J1c R8cis} and Relr~iOu$Go 1-em11u:11ls

•.

I 5

Th e Aliens in the ErA 0J"Gova111r11e'nt 1111d l11111

2 1

lntcmation11J Problc1ns ofthe Minorities

•• •

13

26

26

Acce.1,111ncr

""

of tht: Al1t.-"11; ·

C llAPTER TWO

GE'IERALI'lltS

MtNORIT/E:S PJ«J7'F:r71![) UJ IJl· l ; lTE:IW A (j/l}'f:.lfEN?'S

'

'

'

:!7

JI

33

33

GonemJitic;

33

Com·eotional Cidzcmh1p

J.5

Two FundamentalPoints

,.

J 7

71ic 011/y Leg.•/ Soured

./ I

nu>R ole othcc Will in Lcgallef.tt1d1s:

./5

The N•t uro of t/JC Ape~m entand i ts E ffet:t f<:

./6

The Worth oftlx: Ag1'Cf1m<nts in Is!.m:

JS

T/Jc MH11d.ic "fl/1" l111M 1 Ali (A.S.)

SJ

Minority Rights

ii

Explicimess of lnu:f71JIJio1111! Agrcemen1s

,

55

Cim1pelenco for D rawif18 11p Political Agtt:t:mcnls

56

Proreclion ofJn1crm1iooal Agreements

.S7

Pem1 n111>nt a11dProvis i on11 lAgro1'111en/s , The Principle ofOblig111oryFullillmenl ofPromiSds and

59

respe"ling them

62

.4nnul111ent

of'/111ema1io1111/ Agtt:emeat>

62

Cnmp;lcnl /sJH1111c Aut/1ori1y for Concluding

Agrc:.cmc111s

-

65

CHAPTER TH REE

67

TH E LAW OP TRmlffE A U REEMEN1'

,

69

l

&GAL

l iwJEOFTHE TP.EATYOl-'NA TIONAL UNl'iY

,

69

J'IUJJCITEA0Rlil-::AIEN1'0R TREATY Or NATIONAL U.wrr

 

69

THENA1'\JREOFTIIETR!BUT£AGREEMENT

,,,

,

75

I.

The Rcspn1Jsiblc lor Conc/udit11f a 1'ribu1e AgrecmCJ1/

76

2.

Commiut:d A llies

79

A

s wdy of ll1 c Vie w of Ill e S unJJi Jwisp1vden1~

86

Com:cJion of an trror

89

f>rion1y oflb• Follon·crs of !Jca nm ly Books

,

89

TH ET E.'IT OF THE TIUlltJTE AGREEMF.l>'T

93

CRAPT £R FOUR

R£$PO'.'SllllUTJEs Of BoTII PARTIF.S

,

A Surwuro1'0BuG.11r10Ns on111::·Mmoxn ·1c~ 1 1.J 'f'iuu1 n 1:: . · l tiu t: 1»1 1, , · 1 s

Conditions.

dl'ld 1'anis ofTn.b111a Agreen1ents

99

IOI

1 0 1

Rcspn11sibilitic:; of 801/J Sid~.!!

101

Dasie: Atticfe~o/'n 1iibuft:

102

Condiuiws lo be Stipu/nu:d

1(N

Compn1i/>}¢ Contli1io11s

-

I05

/llegi1imn1c Conditions

I09

iii

t\'!lnority Right~

Does 1be

Paymeqt

of Tribute Menn AQjectness?

I 15

Studying

the ayab

011 the Jizy•fl

JI IJ

A

Talk wil/J Self.Sold Weslcmised Pcrso11s

,

123

Me11sure ,,f1~i'nant:1~11Co1mnftI11en1

126

Financinl

Ability - Consent

:

:

126

771c Diiiy ofthe Trib111c CoJ/cctors,

 

J28

Wlio ls 10 P.vy //Jc Tributc?

/37

Exemp/Jon lfom Trib11te Pnymen r

f 42

CllAPT'ER FIVE

15 I

Mt:sLIMS' COMMl'l'MENTS

151

J . An Over81/ Jmnrun1iy

,

157

Unilnrernl Defenc< 'fh,11(y

 

161)

The Totalt in the Qw· ',ftJ

 

166

U1< G o spe l iJ11/Jc Q1u'iln

1 69

ln1 · 1iDfJ'o n Md Propac111ion o n 1/1< : Ba .~'1$ of l~o.gi,· ll/1(}

Re11son

rn

Fre e Dis c u<;s i oo

,,

,,

1 76

Tbt.: Forbidden

,

,

J79

Fn:cdom of C/Jifdren

181

FreedOIJJ -0J'Rcligiot1!i Rites and Ce1'Cfl )Onies

 

JIJJ

SeoUJiry of Temples Hod Sflcrcd P/.1ccs

 

,.

/ 84

Newl)"Founded Places of Worsltip

 

185

Apos1.1sy ofRoligiuu; Minuritic;·

 

,

188

Probibited

J92

W/Jy Do the ls/Amie Co urt> H11vc Rn Option ?

 

202

Fair fudgement

203

, 771c View ofthe Shiite lurisf)J'IJdents

77lird Vlew

,

,

204

206

T111: J~ws'Pleading 101· Justic e in the P1'DJ'he,1's Pre

;enc:r:

208

Freedo11.1 ofl}1e lvfino.ritics i/1 Cbo"sli1g l11c Cotu'fj·

 

-

208

Minority Righi~

iv

Capitulauon

109

lntematioM I Cowt or Arbi1rolio11

,

110

AltfJU.,crPn'vilcgc

211

O »nerslup right of/be Comuullcd Minuritks

 

214

Fr~cdom of C {>ttu

, . ,

,

, , 2 15

l.liw y isForbidde11

-

l 16

Agricu//urc and F11 n11ing

~··· ·············· 218

Free tCono1t11C Relation:,

2 18

J'rade Taxes and Du1ics

•.•

220

TAX CS on l.nttd 1iansfer

-

, •

222

F reedom ofJo hs

, 22./

l

.1t u>:; o.flt1/hr1ihgc 0J' Nnn-Mus/1111s •.•••.•

 

225

~11t:1·1ils,~uf1/u: Mi11tJr1tic.-s n 11/t M us/Jin

:!:!8

)

l

Wil l ·'.> ('vn•~J':illJll I U / :; /1ou

 

,,

129

CQn t ,·rs1on t1fUoth ,

,J»>c:s

10 IJila111

········- • •

233

Wilen t lu : Jlu~·b1111d (. ' u n1 · c.·rts f (J 1~·/11111

A,Rlsf,vsy tJf tltc 1w11-M1t>li111 r(l upk

M•rriagcofMu.1inrMen WilhN011-Muslinr Women

2 33

23~

214

.~1ur1'o!Jt.~ u/ ' 1t l1

fu

s/1i11111t111 u1/ 1b Jc 1vlsh ,111tl C tuis11:111

Women

235

11u; n;, 01c.·c: I.JIU'

 

-

138

lr1/u;r111111ct:

/.It u ·

.,

.•

]39

I

Vpft : ssi<n1 of' lfl/0111/ ttnd flu11111n /·t.·elin&~ ·· ,

S()c1a/

••

, ,

Ob$ctvnncc ofSoo t•! /;'trqu«lleo'.,,

F~l'Ollr11nli Hen~•o/cncc

RernlsJ.i<Jn 11nd fndulgr:ncc

$'/1n u •1Dg A!Tt:c: tio u und J;rlr:.n d.-.·luiJ

S<:/l; Surnm<fer am/ X cfltlplli/i;m

,

-

······u···

-

··

,,

1 .J J , l.J3

2•/.I

U6

2.J7

250

253

An Jgno11111u"nus S"Janth;:r

160

'/111.: Qur i;n '.\ lagit· tJn tlu.: Prin1

·1j1/i.•

o f' Co-upc:ratio11

265

v

Minority IUi:hlS

D>-opcmtion on a Uni>'eml Len:/

Mlnurt'lies'p;utici'p1Jtion in Co-Opc.mti•"C Activities

!67

170

PART TWO·············- ······································································ l7J

PART l'liREE

277

So•'c.rcianty 1i1 t/1C /s/a111ic

lan 1

,

18.J

Principle o f Sow:1

,ign1y

/I ccording 10 tM h>IM11'c:

 

Jurispnxil:JJC<:

! 87

Muslims' Pulitit:8l Independence in the Qur'ln

-

•.••

!88

Agittmcnt> Cootnuy to tlJC Pnnciplc o flotkpendcncc

Pr i' n c ip/c o f Non · lntcrfcrc-11c,

' /1u : ~\'0 1 tt t'riijj . 11/y of ' fshun _ ,,,

P1; ,-w.,·11·.1ti<Jn

vi sove1·ciGJ1ty 1n /11tt!1'f11Jtio1111/

C o 11v1111n1.:111s

.~

~.~··············

!9!

~ tJ~

] 9 8

300

CUAl•TER SIX ·······················································-··········

···········

31S

  . 3 IS
 

.

3 IS

Annu/11 H: nt o f ibc Jfibut e A g rc:cn u: n t

 

J IH

/;ffr:<:IS of the Annu/DJenl oftht: 1n/Jul< Agrrx111cn/

 

JJO

Vio/Ation o f the lnbute Agreement

 

JJ

I

I.

Vi<Jl.won by the Mu.<Hms:

JZ I

2.

Vio/,,tion ol .lhe Ag,.ee111cn1 by tlir; Co1111ni11cd

 
 

J24

indirect Viol11tiun aJ' t/Je 7/ibult: AJJ,1'tfe11u.;nt

 

J2S

ConsG-"l/Ucnc;cf/ of Violaling llu: '/i1"bu10 Agrcx·111t:n1

126

C.on vcr.;iuo t o l~l111uafter Vio/111inJJ 1/u; Pact

J J9

PRECEPTS

COt<CF.R.'l lSG

n tr TRllll-'TAJll ES

33 1

PREC£1'1'S C ONC ERNU<G

THETIUllUfAlUES

••••

333

Exmws fom1 Tahrir uJ. WM17a by tlu: Imam KJ101ucini

Ct>11diu'ons uJ' tl1c 11-ibute

GLOSSARY····· ········-······························· ·····················

333

JJ./

337

.Minority Rights

vi

R'£FER.ENC£S

-··························-··············-··

C n111111C11t.tries 011 til e: Qurlln:

Shiite Jur1spn xkne.:

Book.< on !he Aynf1» of Ptt•ccpts

··················

341

J4 /

JJ/

3./2

SUJ1Dj Jud<prudcnt

341

/JJiilOlj'-•··••••

"

• ••••••. •·••· •

JJ2

S/11j1e ~}lrdit11.<

3./3

Sunni ff~d1tb,-

1-43

M1S<.'.:l/Rniqus

3JJ

lnlcn11J1ir>r1al Rig ht.<

3-/.I

lntenJNtt0nal IU&flls (Nm•)

JJJ

g;, ,h.,. ·"'"'"'" pf' .,/(//,,/,.,

!/.,,,

fi)e,.11Ji'«;e.,,t,., tft.c- Jl:k.r<;;/(, /

Introduction.to the Third Edition

The question of religious minorities in the plan for the big house of Islam

S iucc tbc rise oflslam and organisalion of lhe Muslims

and !be appearance of th e ls la mi<; soci~lj es, groups of

the followers of various religions lived alongside !he

in Islamic lands wi11Jou1 adopting Isl~m . T h~y pr e -

ferred to live with 1he Muslims rather than to emigrate or be converlcd.

Bui with lbe rapid spread of Islam among various oatioos of !he world, and the ex1raordinary growth of Ille Islamic ummab and expansion of lhe L•lamic land~, tbe religious mi-

Muslims

Minority Rights

nori1ics did not grow so muc h or

of rhc frc

Islam, a nd many of them lost lheir

solidcri1y. in ilia1ivc aud i u 1crcs1 in lheir and 11c1ivity.

ra rely mecr a case in which re-

ligious miuori 1ics bav.: engaged in o rgaoised upri sings , co m - bals and clashes 10 secure 1beir rights and fr~d o m s. TI1osc ra re cases w~n: re larcd 10 panicular poli1ical cvc nls Rnd rcla 1ions, but no1 cooocc1cd 10 lb c Isla mic qucs1ions .

:

rdi gious cx.pans ion

augmeor io number, inspi re

'dom

and tokrable life Ibey enjoyed. A number of

1hem gradually 1umcd to

In 1hc history of Islam w

:

Th

:

his 1orical pos itio n of 1ht! religious miuor il it!s in 1h

lsl11mic sockrics and lhe Islamic lands was q11.,s1ioncd wirh

au 1111l>cli

<' rn c ullnr c of I s l am . Bui si n ce 1h c

allrnc1ioo of Islam and its logical Me1hods or co11v

well as 1he ucgation or compulsion or imposition or n:ligioo. and al 1hc same tim e a spirit or co-existence, peacd'ulncss, and gran1ing gTL'll1cr njgbts and freedoms, all of which were unfamiliar or iuadmissibl c !Or 1hc western wo rld . t hey made

a wrong iu 1crpreta1ion o f Ihis mnguiliccnt hi stori ca l eve nI. T his n1is1akcu iutcrpr<:talion which accused Islam and 1hc

Mus lim s of' rougbucss and !Orcc ful im posi li on of r<! ligion ,

q111.:s1ion from

lwo a spects in order 10 d efend Islam . They tried first re fut t: this unjusl accusation against 1hc Muslims hy describing the rights and liberlil!S grautcd by Is- lam 10 the religious rninori1ics and delining lh<! t bco r.:1ical and j ur isprude ntial dimensions of 1hc qucs1io11s, aud s urvey- ing th.: hi s1o ry of Ill~ Mus lims' po li1ic al. social aud eco nom ic

rous ed 1hc falamic scholars to deal wi1h t h

:vahk

as1oni sl11ncu1 wi1 h

lh c invasi on of 1hc wesl-

true n :ason f (>r i i was th e

:rsio11

as

:

Minority Rights

3

re lations w itb the religious minorities e ven in the conditions and cases where the Muslims did not act so much according to jurispmdentia l tbcories. 1 Altho ugh this reaction was natural by tile Islamic scholars, yet it is regreted that we should perform our dutii:s in the form of a reaction, and instead of takiog 11recautions we should wait until we are criticis«l M d accused. and then

wh en we begin.

a charge ins tead of analys ing the mancr fundamentally? Finally , w hat po licy is to be cdoptcd by a religi on w bicb claims to have a universal mission and hy an ummflh whic h coos id ~ rs it s elf commissioned to c arry out a rol e in th world, aud by these two uhimMe bcirs of the earth and hu-

:

Why s hould we coofiac ourselves to refuting

man gcncrntion, iu attaining this ullimatc goal in the quc:stion

o f relationships

positio n w ill the religious minori ties have

lam, and what rights and liberties will tb

the Is lamic lauds w ith

non-Muslim uations and groups is one of the most important

political problems o f Islam in its c ivil and international di -

to the

Islamic texts and jurisprudenc~. Ir in the past such legal and po litical topics have had a mere comp arative value in presenting tbe theories of the school o f thought to prove the comprcbcosiveness of Islam. Today, especially after the glorious victory of the Islam ic Revo lutio n, its vital and obj ective necessity is evide nt to eve-

mensions lo be inve stigated carefully wilb refere nc

with the foll owe rs of o th.:r creeds'! What

in the IJlnds of Is- enjoy?

y

T he qu es tio n of the r elatio nships of

:

1 T he t\VO \Vo1·ks : · · n 1c Gul11ds of' l 'cNcc 11ntl C o-exis11111ce " a nd · ·77Jc

RiBlusofr/ie Minnrities ''have be-en wrilh;n fv r 1his purpose.

11ntl C o-exis11111ce " a nd · ·77Jc RiBlusofr/ie Minnrities ''have be-en wrilh;n fv r 1his

4

Minority Rights

ryoue:

In ihe Islamic republi.can 01der where, according to the coustitutiooal law of the country, all. the laws and regulations should be based oo lbc Islamic laws and principles, and the position of the leadership of the Revolulion sbould be de- rived from religious guardianship and jurispnadeoce. No ex- C\IS~ is acceptable in neglecling inves1iga1ioo iu Ille lcga~ political and economic matters oflslam. Tbis book of "Rights of Minorities" which bas been out of stock for many years, is now offered lo 1he readers iu its lhi.rd ed ition, and it may be considered as the first hu1J1ble s tep io perfom:ting that grea1 !ask. As the book was wrillen 1wenly years ago under the conditions of the taghut regime, many of irs 1erms and expressions cannot be clear enough iu preseol- iog tbe Islamic realities. But the book is based oo jurispru- deniial principles aod the views of rbe greal Islamic jurispru- denls, for the c.ompilation of which the author has spent sev- eral years of research and bard work, hoping that it will be accepted and rewarded (by Allah). \Vltilc apolagiziog for all rbc defects 1b~t Ibis book may have, l invite all. rhc lslamic rbiukers and scholars in whose heans the eternal flame of [slam is kindled aod rbiuk about the future of Islam and Jsla1J1ic Revolt11iou, to look al this

book, 1101 wirb the eye of iodt1lgence, but with .a critic al ani- IUde as 1beir duty oeccssitatcs, aod with bener and more e.x- planations make. more perfect this bumble step by a deeper inves1iga1ion and discussion of its legal, J>olirical and eco-

nomic

Tllc views of rbe luxam Kbome irti, expresse d in Al- Wassila

mailers which the needs of !he time require.

Minority Rights

5

aboul Ille rigbl s of lhe minorities ha ve been added 10 the topics of the book in order 10 give ibc •nalysis a comple te form as a basis for furTber researches by the researchers.

'Ahbas-Ali 'A mid Xanjiini

October 1983

·j i

·j i

~ /he /t«//le> (>/'' vt!//ah,

d€$ IJIJ~.,~«"'"4 ~he- .dk-rrf/'J,./

I have found no fitter and no more

Suitable opening for this book than

the following brilliant and meaningful utter;u1ees

selected from the eternal charter

of Imam A.Ji, peace be upon him.

the eternal charter of Imam A.Ji, peace be upon him. D o not reject any kind

D o not reject any kind of peace and pact of co-existence to which your

enemy invites you ·and in which there is Allah's satisfaction; it is in peacetime that your army and military forces will get a greater readiness and strength; and you will be freed from your anxieties and griefs. and your co\mtry, too, will live in safety. But take coustallt care, aud be cautious of the enemy aflcr making peace with him; for the enemy may often approach you to benefit from yo11r negligence and take you by surprise .

''

6

Minority Rights

T herefore, never abandon caution, hut take su spicious of your optimism."

an agreeme nt with your

If you c,onclude

c~re and be ever

.:nemy or uuder-

lalce an obligation, be faithfill to your pact a nd carry 0111 your commitments in foll honesty, and make your life a guarantee for th e protection of yo11r obligatioos, for there is nothing

grea te r

amoog hioding maue·rs of Allah about which there exists unanimity. zeal and interest inspite of all the differences in peo ple' s des ires and v iews

J)o nol seek excuses. in your agreement, and do n01 allow any treasc;m, plottor c.tLnning 10 enter your promise ancl pac.t. Do uot miskad your coemy by deceit and slyness. Uudoub1- edly ooly iguorau1 and miserable people show disobedience to Allal1

Allah has made prnmise a nd agcee1.11ent Ille means o f se- c uril y and ba.~ granted ii lo 1he people because of his Favou r and Merey. He bas made ii a sanctuary in lhc sheller of which they may live in c.asc aud tranq11ility, and with lhc aid of which they may gain many benefits. Therefore, uo fraud. deceit, 1emplation, doubt or treason is p e 1missibk N e v er conclud e a pa c t in w hi ch then~ i s rni si n- 1crpNta1iou a nd ahe rrati on. a:nd afler co11cluding ii li rlnly au<l g iving yo ur 11ssuraucc, do uot resor1 to 1nul1i-sidecl argu-

and highc.r tba n loy al ty lo a p ro mise aud agree mcnl

ments.

The diflicu lly of lhe task in o bscrvi.ug Allah's pact shou ld not lead yo u w <lemaud ils abrogation unjust ly; for, yo u forti- tude in bearing the difficulties aud hardships w hich you hope to have a good c ud, i~ better than lbe slyness aud c·unning Ille

Mi nority Righ!S

9

J>Unishmcnt of which frightens you, and makes you afraid of o~ing calt.:d to accounts by Allah, and fail w s~cur~ the pos- si l>ilit y of being pa rdo u ~d in lhis W(lrld and in rb~ n ex t , T h e

Imam Ali (i\.S.)

I

 

I

j

I

l

'

Chapter One

The Defenceless Aliens

A Survty ofthe Positive International Laws

l

Chapter One The Defenceless Aliens A Survty ofthe Positive International Laws l

)

) ~ •

~

Chapter One

The Defenceless Aliens

A Survey ofthe Positive International La'IJ!s

The Minorities Defonceler;s Aliens

T be ueed for ao excbangc of mental and mate rial

products of various groups of mankind from the

and tb·e spi rit

of association and acquaintance among nations; and their lib-

and .rcsi-

deuce, have necessitated, since the remotest period of man's

social life, the inevitable mingling of various racial and relig- ious groups iu most of the iob1tbi11cd lands and countries which have been formed. Owing to this same forc.ible mingling of the nations, few

countries c an be found

whose citizens have· the same religion

eral feeling, and the rig ht in the choice o f dwelling

viewpoint of blood, language, religion,

and race, or whose members possess the same national char- acto:ristics desired by a pel'Son or persons or by tire dominant

I

.J

1

J

14

Minority Right~

majority. lt goes without sayiog that in every country, a rulc.r or a government follows a special racial or religious or Mtional

aud citizenship policy, aud makes the enjoyment of 1<!¥al aud governmental protection conditional upoo the conformity of

th.: individuals with th.:

T hi s point is ever truer io the case of past nations and condi- tions of fo rmer centuries where the system of racial and relig- ious policy was carried out more violeully and faoatically by their govcmmenls. In mo s t casl! S th e exec uti on of the policy n :s ulled iu lb <! privAtion or th<: .b'Toups which did not fall under that system, and many difliculties and restrictions were ol°l<:o placed upon the m. They were treated unkindly or cvco cru.::lly by th.:: rul- ing ch1ss aod by th.: majority. and wer.: in some cases tor- tured most savagely. Conse4uen1ly tbc question or minoriti.:s and the protection of their legitimate rights bavc, for long in the polit ical history of tbc world. taken the form of an ioter- oa11onal problem 10 be considered aud investigated.

ci tizenship system of tbat cbuntry.

Meaning of' Alien'

In the past a group or tniuoritics wer.: looked at as a lieus, except that this term assumed a differeot meaning according to the difference in the pol itical syste m of each country. Jn th.: realms where a racial system governed, an alien was a person wl11m! blood, language or other characteristics did not c<>nform with !hos<.: of 1bc ruler or of th e d o minant ma - jority. S imilarly in countries where a religious policy was fol - low~d and nationalit y was l>ascd 0 11 re ligion , an alien was

Minority Rights

15

coosidered a person who did 001 follow 1be religion of th" ruler or 1he domioanl majority of lhe na1ion. J\t 1he presen1 l ime, 100, whco the ci1izeush ip o f every

country is based on particular national clements. those p"r-

sons who lack such ele mcn1s and aliens a nd a group forcigo 10, and

The nature o f bciog an alieo bas undergone no cbang" in 1he so-called progressive modern limes as compared with the so-called decadetit past. The only noticable difTercoce is 1bat in the pas! it was 1he ruler or 1he ru li ng group tba1 decided who was au alien, but now be follows lhe law coined again by the majority. In 001h cases the minority is coun1.:d Hs an alien and a foreign group and an i ll-match ed pa lch upou th <' garroenl of 1hc oa1io11, and a group 1tp•J1 from 1he human elements which fonn a country. There exists 110 na1ioual unity betwee n the two groups of alien minori 1y and ua1io na l majori1y, and the national unily is 001 possible except tbroug b a cbaoge of ci1izenship. Bot in the system of 1be Islamic laws, although ci1iunship is based oo religion, 1be word "alien" bas no pract ical appli- cation and Rn individua l o r t he religio us groups can joio the group of the Islamic Ummah by concluding a 11act or agree- ment of dhimmah. In Ibis way a single Ummah and nation is formed by lb~ uni o n o f differ e o1 groups possessing different citizenships. This poi111 w ill he explained in th.; fo llowing chapters.

pcculiari1ies arc cpnsidcrnd apan from, 1he nation .

Aliens ia the Racial and Religious Gove rnments

Before dealing with the righls of tbe minorities in the ls-

~I'

I-

:Ji'

16

Minorily Righl5

lamic legal system, it would be necessary 10 consider briefly the posi1io11 of the aliens in past govemmcols as well as in the 1J1oder11 lega l systems. For ibis purpose we make a survey of their position in tht: fo llowing periods:

1. The period of the rule of racial aud political systems

(before lbe .:s1ablisbmen1 of the Uuitcd Nat ions Organisa-

liou).

2. T he peri(ld of the rule of lbc law (after the establish-

ment of the UNO). lo the countri<!S uuder racial or religious governments, ali- ens usually bad, au uu fort uua te pos ition ~xccpl in rare cases,

and lucy were uul o nl y deprived o f the sources and rights o f th e o flicial r~ce and rdigion or the c ountry, but t h ey wo: r.:

also treated badly hy both the govemrncut and the people, a ud owi ng 10 this 1rc a1n1cu1 lb i: rc o fte n occ urre d incid e nts which Jed 10 grou p 1onures, m assac res aod t ragic scenes. J;:wisb governments, which before Chris t wen: lbc most

JJowc rful aud th <:! o ldes t go vemmt:nl oftb e 1i111c,

special band bc1ween race and religion iu the Jewish faith which bad given it an ac ute form , usuall y follow.:d a harsh rncial and re lig ious po licy and treated oon-fowisb gro ups as animals 10 be used by t bc se h:cl jewish r ac e. T he Jewish government, which was chosen by the Jewish 11a1i o n , and , l i> r lltis 1·c 11.~on cou ld not adop t 1b c 1h co r y o f a government formed of various rncial and religious groups, or

th <! fo rmalion of a world govemmcot

for it s goal, had but 10

owing lo the

adopt oue o f the two following plans in relation 10 its policy towards the extensive oun-jewis h masses:

Minority !lights

17

clean elemenls (non-Jews).

2. To enslave and exploit such groups in the inlerest of the

select Jewish people.

The second policy was naturally followed whenever relig- ious fanaticism was not at iL~ height. But when the conditions

resembled those of the time of ihe rise of Christ and the spread of Christian influence on the Jewish governments of that time, only the policy of the annihilation of the non-Jews was followed.

The sto1y of Jesus· life and the 11·agic eveuts of Ille short period. of1bat gre<1t Prophet' s mission, as well as the 1om1enls

and tortures sutlCrcd by his apostles at the bands of the Jew- ish gov·erumeut of ibe lime and the wandctings aucl home- lessness of the Christians in that period. are a clear exam ple of the crud conduct of the Jewish governments. ' The geno- cide of the Christians by 1he Jewish government of Yemen is an example of tbe disgraceful bigotty of the Jewish govern- ments and !heir unhumau treatmenl of the noo-Jews. In this fea rful massacre tens of thousands or 1he C hristians wen: tragically killed and b1tmt in fire. /.u-Navas, a Jtlwish ki.ng of ycrncn, in a single occasion killed twenty thousand Christians ofNajran and buml their bodies in fire. 1 lu tbe early years of the fourth century A.O., when Christi- anity was accepted as the official religion of the Roman Em- pires, and Christia~ governments and r ulers held the rein of

affairs, the era of the freedom of lhe Christians and e11slavc-

me1)t of lhcJcws beg.au.

1 "A t- ~1 'ilyusJ1 sd-Dini /jJ-Js/an1 ·: (Re l igiou s Co-c xi s lcncc in lsf 1u 11) pp .

20-22,

i

lbrd.

I)

18

Minority Rights

The Jews were massacred several times during the Chris- tian govenimenl~ of the Roman Empire or banished in groups from the Roman realms. Ou one occasion Cyrus, king of 1ran, g ranted asylum t<> tens of thousands of exciled and homdess Jews. Io the 16th century A.D. the Muslim Otto- man governtn e1Jt received thousaods uf Jews who bad been cn1elly driveu out of Spain and Port.uagal aod allowed thew

to selllc in the Islamic lands. ill many Christian countries, tbc .Jews were deprived of all civil rights and were not even allowed to keep slaves which was free and common in lhos<! times.

Io

this c.onuection

the Encyclopedia

Britalluica, writes:

The whole of western Europ.e was c losed to the Jews in the

I 61h ceurnry, and 01Jly iu a pal'I of uoribern 11aly aud a small parl of France and Germany were they allowed some free- dom.'' Iu 1648 a law was passed in the British parliament con- demning lo dealb a3yone who expressed an opioiou contrary

10 th e principle. or trinit y, and in 1688 th e

decla red Pro1 cs tauti s m as the offic ial r e ligion or th e coun try,

same parliament

aud stipulakd lbat no Catboli~ bad Ille right to perform bis religious rites in the Aritish realm.

uu1il the e nd of the 17th century in accordant.:

In Prance,

with special regula1ious eo~ctcd by Catholic governmeuis, protestants were placed under severe restrictions. They were no! even free to bu1y their dead except at special times, and uo more than thirty people were allowed to escort the fuucral, and oo more than twelve people could attend a weddiug or a haptism.

In C hri stiau governments 1he s ubj ect of 1be eliens bad

I Minority Righls

19

I I

mostly a religious aspect. and the alieos suffer~ all ki nds o f priva1io ns and restrictions and cvco tortures and oppressions, wi thout having auy refuge.

The dreadful

scenes and happe nings which took;

place iu

this connection

in various Christia n

countries unlit" , th~ 1 7 th

century, resulted in paying anentioo to rite question of relig- ious fr eedo m in most of 1b c Treat i es of the 17th , 18th a nd

as 1be famous II<!Alics of Weslpbalia and

19t h ccn1u ri es, such

Vienna. In lhe Paris Treaty of 1856 it was stipulated that dis-

cri mination should be abolished in

ious aspccrs. In th~ Bcrliu rrcaty of 1878 th~ big powers of th~ rim e compdled fooMical governmcors 10 recognis e fr ee- dom of religion, bur 1bere remained ao arnhiguily couc~rning mailers of race, laoguage and natio nality.' l t is noteworthy that the subject of minority rights was cons idered in connection wi th the racial aod religious mi- norities w ho were citizens of their n:sid cotial realms, and as explicitly mentioned in the Paris Treaty of 1856 it was de- clared that there should cxis r on discriminatioo among th.:

individuals of a co11n1ry ei the r relii,riously or racially. After the fin;t World War ce11aiu principles were stipu· lat ed in th e gener al and particular tr e aties condud cd for th <:

international protection ofminoriry rights and maoy govern- m ents accepted to observe equal treatments wjtb all their

subjects including the racial, lingual and religious minorities residi ng in their respective conntries. 2 Finally with the Crcflting of tbt: League of Nations the

both its racial and rdig-

'

Huqoq-r

234.

1 Ibid.

Bn.rnil MiM "( l11rem• tia nal U.w) by Dt. S•fdari, Vol. l. p.

20

Minority Right~

question of protecting minorities entered a uew phase and the League of Nations stipulated: 'To guarantee respect for, and observance o f the minorities. it should be reflected in their

cons t it ut ions, aud t he Le agu e or Nat i ons, too, wi ll s~e t o t he fullihncnt of these ob1igations." 1

It goes w i1bo11t saying th at when the question o f

safeguard-

ing the minimum rights of the minorities who an: citi:tcos o( their resident country requires the agreements a11d emphatic

recommendations of the UN, obviously 1he question of ali- ens' rights iu a n intematjooal life will be faced with greater difficulties. lo the case of aliens too, it was ouly bi-lateral or multi-

for tbem o f Intcr-

natioual Rights wbicb was sci up at Geneva ia 1874 to thi::

effect chat the aliens, iadependen1ly and wi1bou1 the need of

any stipulation in the treaties in their favour. aud even with-

ou t auy reciprocal treauncnt. possess rights and

which must be observed by th e goverumcnts. 1 This mailer

late ral agreements that cou ld safcg1iard so.me rights, aud ins pite of' the recommendations of the Institute

privileges

was oot conlirmed by the co1111tries as a binding law and " 1.:ga l principle. Thus the governme nts bad com1>lclc frocclom

iu dete rmining

regulations and determine the rigbls of the aliens in accor- daucc wi th their own security, econo mic a ud political co ndi -

tioos and on the basis of r eciprocal observaucc of 1bosc regulations.

the righ1s o f the alie ns, and could d evise

1 Ihut., p. 2)5.

Minority Rights

21

The Aliens in the Era of Government and Law

After the Second World War, when the League of Nalio ns

was formally dissolved and the United Nations' Organisation

was created with a good deal of fuss and golden hopes by

the

victors of the war,

inspi te of its apparent .advances ilJ the

so-

1 .

I

lution of i11ternational difficulties. no fresh steps were iaken to protect the rights of ibe alic.ns and the minorities. The last step taken was in 1929 in the form of a great in- ternational conference in Paris, but no positive result was l1 obtained inspite of all ihe efforts made for determining the maoner of treatiug aliens. 1

after this conforence befor<', afler and

during

bad no noriceable effect on the situation, and at no time hav~

the rights of Ilic minorities been more violated thao al the present period. 2 Disregarding tbc acts of the .governments, 1bc jurists have tried to regulate minimum rights for the aliens. For iusrnuce Werdross, ao Austriatl jurist, bas proposed ihe following formula for the minim11tn rights of the aliens:

the Second World War, t.o solve this prohleo1 have

The steps taken

,.

I

Ar.tic.I£

I:

to the ir

alien citizens which are necessary for each individual to con-

tinue his Ii fe.

Article Il:

rights

The governments should grant the particular rights

The governments should

I

2

Ibid., P· 80.

Ibid., p . 8-0·81.

recognise the

acquired

2'2

Minority Rights

which the aliens bad obtai ned according to 1be positive laws

and re-

spected.

Art,iclc lll:.

of thei r own. or olbe r count ries, sho uld be o bscrv

xl

governme nts should observe rigbts for th e alic us rcq-

uis ik for rcspec1ing 1bc pe rso nality o f tb e individuals, in c lud -

ing personal freedom, freedo m of dwelling aud movcm.:nt.

TI1

:

J\ rticle rv:

T he fo ll owers fo reig n na t io uali 1ies s hould ha ve 1h.: righ t 10 ap110.:al 10 Ille courts oftbc eoun1ries they reside in.

Articl~ V:

Prot ec ting 1bc ali e us again s t s uch acts the damage of their life aod prope rt y, is

which may res ult io the dut y of lh.: gov-

country t h.:y resi de i u. 1 1he analys is a nd recommenda tions of th e lea rn ed

la,vyers. si milar 10 lbc conclusions o f lhe international con-

lhe United Ntttio ns

and ils charters, provide no ~ecutional guarantee. and. so lnog tts th ey are not stipulMcd in a forma l agrce me nl , th ey possess only a moral worth. T herefo re in this era of progress, civilisation and law. no j ust and regu lar law may b.i fo und, which, by its .ix.:cutiou, the righ ts of th e aliens ca n be safeg uarded in all co uu1rics. Obviously even bi-lateral or mult i-lateral ln.:;itics and

cm m e n1 th e

l\'a111ra lly

fore nces aud th e e mphati c declarati o ns

o f

agrecmc ui s c ann o l p ro tec t !he rig ht s o f the a liens ius 11i 1c of lh <l p o lic y of rccipro(; al tr ea lm c ut. s in ce , supposin g 1h a 1 lb

Fre nch govcrume nt maltreats so me 13ri1is h nationals r<!siding

:

Minority Rig h ts

23

io Fraoce, this act is not a legitimate excuse for a reciproc.al

treatment of t'rench nationals residi,Dg in Britain

ish governmen:, or abusing their legitimate ln1man rights. Naturally, the fa.ct 1bat tbe Frcocb govcrnm.ent represe11ts all Frenchmen does not mean tbat a Frenchman residing in England should pay out of bis own human rights for the damage not caused by him. hut hy his sovereign government, rightly or wrongly, for some political r~asons.

by the Bri1-

International Problems of the Minorities

We have said that oppression and 1rausgression against the

human rights arc not confined to aliculs alone, as the matter of protectiug tbc rights of racial aud religious groups. who

are in a minority, even

thougb they way be the citi zens of

'their residenT country, is in itself' an unsolved internatioual

problem, for the solution of which nothing bad been done until lhe Second World War beyond tbe recommendations of

the international couferences aud tbe uoguarautccd reg11la - 1ions of the League of Nations.

Afier the Second

World War ~ud th e c r ealio n of th e. U nit~d

Nations Organisation, even though the United NMions Char- ter paid, to some extent, a special alteotiou to the fuudamcu- tal rights and the liberties of buroao beings, yet the minority question. as a special case. as was tabled to Hie League o f

Nations, due atteniion. In the peace lrearies concluded after lhe Sec-0nd World War, even though defeated couotrics uo- denook to observe the fundam~ntal huinan rights and tbe lib- erties of their subjects without a discrimioAtion or religion. race and language, yet the minorities have not been protected

of their subjects without a discrimioAtion or religion. race and language, yet the minorities have not
of their subjects without a discrimioAtion or religion. race and language, yet the minorities have not

24

Minority llig.'lts

ac.cording to their specia l and indepcndant position. 1 Tn vie w· of th e articles of t he treaties co nclud e d after the

Second World War, it CJ! n

have been drawn up with regards to minority rights, and llll pani c u la r organization has been set 11p to s upervis e this mat-

ter. 2 If something is stated

it is us ually rela ted to a set of some other political waiters which have been under consideration, The General Assembly of the United Nations d eclared in the firs t period of its session: "The high interests of humau · society require that an e nd liti put to tormen ting and moles ta - tion of human heini,rs and to religious and racial discrimina- ttons_

be said

that no special regu lations

in the treaties about this question,

"

.

To c arry out this decision in 1947 the Human Rights

Couuuittec and its s\1h-com111i1lee for protec1i ug minorities and checking discrimination began to lake steps, but their measures never went beyond a comprehensive investigation and sludy of Lbc question of discrimination and occasional recommendation and emphatic statements. 3 In rhe progress ive twentith cen tury the ques lion o f protec t- ing miuo ritics is considered only at a time wh en it would

promo1e s o me political obj ec tiv e. Tn s uch a case , ex te nsiv e

verbal support of the minor-

propaganda is employed fo r the

ity which is to se rve the inte rest of some policy, and then ra- cial or religious discriminations are condemned and minority rights an: strongly defended. If we hear that the world condemns the rac ial po licy o f the

1 "Huq1lq -e Hayoil Miln l -eo ·umomi"(Gene ra t lotomAtiona t Lllw) by Dr. Snfd11ri, Vo. 3, pp. 236-7,

' lbi cL

' lb icL

Minority Rights·

25

,

Nazi government and speaks of the German Jewish propk as a wronged minority aod the savage rncial policy of the Nazis

I

 

I

as the most fearful, barbarous a1Jd crue l conduct.

it is because

·the policy of International Zionism and the padded Jewish government makes it necessary to use all its means and propaganda in various counui cs in order to cover up all its

l

crimes and aggressions, which are undoubtedly greater than those of the Nazis, and present itself tn the. world puhlic opinion with a mask of innocence o n its savage. tyrannical and 1reacherous face. Tllen it coudemous the racial prejudices of the Nazis and considers tbe conduct of Nazi leaders with German Jews, which was the deserved punishments o f the ir treaso n s, as an ev id~nce of th e i nnoc eocc of the nati o n o f Is - rael. Just now the Muslim minority in this Jewish gove.rnmo!IJt, whose rulers co·ndemo Ille racial Nazis' policy, make use o f the slightest artHicial pretexts to engage in group massacres, destroy Muslims' houses and send them to torture cells and fearful dungeons, while the rest are deprived of most human rights, and live in a state of captivity. The manifestatioos aud happenings of racial discrimina- tions of the USA. the wost proggressivc country in the world, make one tremble, but the USA; at the same tim~.considers racial po licy of Germany as anti-human and co ndemns it 10

i

but the USA; at the same tim~. considers racial po licy of Germany as anti-human and
   

auuihilation. tu Rodesia and South Africa rncial d iscrimina- tions Rte condemned because of their disobeying the policy of the masters, and the world is called upon to figllr aud be- siege and punisb these countries economically. But thousands kinds of discriminations tak,; ph1ce in all pans of the world, where Ibey do not clash with any policy.

26

Minori ty Rights

or are in favour of a policy, no voice is raised in a loud- speaker to condemn or blame them. On the contrary, they are eve n confirmed and s upported.

Individual Rights Sacrificed to Policies

We may conclude from the ahove points which were based on the views of the ex.perts on International Law that the rights of the aliens in the constitutional law of various coun- tries depend on the policy of the governments and diffCT ac-

cording to

country as well as t he tenns o f reciprocal treatment of the

governments. There is no fixed measure which might guaran-

tee the aliens' rights in either inte rnational or

Govcrnmeots are perfectly Cree in determioiog the aliens' rights, aod have no responsibility before any law or principle. In such a case the individual and bis interests and rights are sacrificed to the interests and the policy of the govcromcnts, and in many cases he is treated io the manner of those guilty people who are deprived of human rights. even without hav- ing commiltcd a sio. This is an example o f the perverseness, lhe blind-alleys and the legal errors o f the legislators of the prnt,'Tessive world. With their limited ideas and vision, where they make laws for the preservation of social interest, they fail to see the shortcomings in which they are involved due lo their limited thought and .knowledge. Consequently they are driven lo blind-alleys some of which are a disgrace to humanity of to- day in the form of insolu ble international problems io the

the conditions and

political interests of each

oationol laws.

Minority Rights

27

world. 1

In later discussions we will deal with the system of 1be Is-

problem wiibout

lamic laws concerning th e solution of this noticing the smallest blind-alley in them.

Acceptance of the Aliens

O:>nce roing the right of e ntering, passing staying and resid- ing of the aliens, there exist tw0 views:

First view:

Absolute freedom o f accepting the aliens. The su11porters o f this view declare that the governments cannot at wi ll pre-

limit

this right. Vittoria, a learned spanish jurist, says: "If we refer to the ·history of the human heiugs, we SC1! that everything was held in common between people al fi rst, and there ex-

isted no limitation for individuals, and every person could freely move about withoul aoy check, and later on, when land and property changed from being communal into priva.te ownership, there arose no need fo r cbecki og peo pk 's move- ment on the basis of1his cbange." 2

S.ec!;mul v.fow;

Limitation .in admitting the aliens. T he . upholders of this view believe tbat the governments have absolute freedom in drawing up regulatipns cooceroiog the euhy and .residence of the alien.s in their territories. According to ibis view, if no

ven t th e entra .n ce and res iden c~ of for e ign nati onals or

Respec1ed re.adc:rs. for further dctai1s in this respect 1na_x re fer ro 1he book "/s lam.and l111cn1.11ionnl RiiJ/J1s ·; unde·r 1he tirle '' Is 1nHn capabl e of

t

fhdng la,v?"

21)

Minority Rights

agreement is concluded be1we.in the countries, no country is compelled to admit foreign nationals to its tcrrilory. This view was accepted by the Institu1e of ln1croa11011al Law which was established in Geneva in 1928. But a proviso

was a dd e d shou Id not

fn 1his connecrioo it should be said that the above views are two opposed ones, both of which go to extremes. lo the

fi rst view only the right of the individual is considered, ig-

noring many social aod ideal interests, while in lhe second view, rhe rights aod the interests of the individual arc sacri- ficed to the illuso ry intt:n:sls of the society and the po licy of the governmeu l. Concerni ng tbe accept anc.: of rile aliens, irrcspcctiv.: of the

legal vit:ws, wbar is actually observt!d is tbat no dcfioitc limit

aod uo criteria exist in the fun ction the conditions for Ille admission of

atti tude and policy of the govcmmcots, as is tb.i cas~ with

otbcr

lb al _j u st ic e a u d mngo imi ty r eq ui re th at rh i s op l iou be misused by the govemmeuts. 1

of the guv~rnments, aud

the alieos d epend ou 1b1:

social. religious, \.'C(momic, political aod .iud1cial

,

I

ng HS.•

.

Tl 1e rdore every gov e rnment has t he a u1 bority 10 refuse the admission or an alieu w itho ut giving a ny reason , or deprive

h ioo of civil righL~. as well as the rights or citizenship. owner-

ship. commerce, occupalioo, or re ference to the courts of that count ry, or benefitting from the rights or security , tran sfe r o f movable and immovable property, performance of religious or national rites, o r even expel him without giving any ex-

cuse.

Ibid.

1 Ibid.

I

Minority Rights

29

This is tbc meaning of the law and the rights in the century of progress, the era of the space and lhe travel to 1be moon. Now we must see what the Islamic law hits offered to the human society fourteen ceotuEies ago, and what plans and just solutions did it present !pr those international problems.

I

I

.Chapter Two

Generalities

Minorities protected by bi-Lr1te.ral

agree.nunls

Chapter Two

Generalities

Minorities protected by bi-lateral

agree171ents

Generalities Confederate allies

"Minorities" in the Islami c Jttrisprudcncc

T he Islamic j11Tisprudcocc docs 1101 cn1isidcr mi11orf·

lies !LS alien o r as a mi nm· i1y w h ic h lacks 1h" pow er

to de1e.rm111c its own rights and dcsiin>' visavi, the

will and interests of the majmi1y. M1lrcov<!r, 1herc cxisl> no

ground fo r the rise of the probkm

fcr<rnces wi1h regard 10 language, race or a ny 01her factor (on

1he ba.•is of which citizenship is d etermined in coulempor•ry law) as com1iarcd wi1h the majori1y.

of racial and minority dif-

com1iarcd wi1h the majori1y. of racial and minority dif- To ex plain 1his poiol, it is

34

Minoril)' Ri ghts

kgal meaning and Islam's vi<:w o f cili zenship. 1 In lh~ Is-

lami c un i ver s al la w Md ideolog y, lb~ <1u .:s1 i o n of cili x.c n s hip and na1ionali1y docs uot depcod on blood, language, lc rritory

rs . 11 is an o plional ma11cr relate d 10

the vie w and atlihJ\k of ihe individuals who fo rm the Isla mic society. Every iudi vichrnl wh o hdicve.~ i n lhc Is lamic fa i th is con -

nor other material faclo

side red a member of 1he lslamic Soci ety r.::gardkss of his

race, language, rc;;idcocc, bisiorical backgn1und o r fomily.

aod amoog vario us human groups

True un ity in the societ y

a:s scco by the Islamic law , can be realized only lhrough 1hc unity of tho ught, will powe r and inte llo:!ctual inclinatio ns. For

1his reason au Islamic society or oaliou consis ts of di fl<:rcu l

g roups whid1, vn lhc bas is o f a singk vie w and bdicf, have

adopted a common,

regulate their pri.vatc aud social lives. In this way, in the Islamic brotho.:rhood, o.:ac b individual after voluntary acceplance of the covenant (faith) formally

beco mes a uicuibe( of 1bc organised Islamic society and as-

hip, aod all acquire o:qual rcspon·sibilities

s umes its c iliz

and rights bdh rc lhe law in which h e hc lic.vcs. Privilegcs and

and

ot ho:r material d ilforeuccs disappear. Rich and poor, big

s mall, black and wlute, red and yellow, ./\Jyan and Sc01i1c,

Arah and 11011-Arah, /\sia1ic ;ind European. Ame rican and

:rsoi' tho:

African all become l>rtilhers and responsihk m~mh lslamic socicly. 1

lrnrmonious li fo ·and a si ngle la w lo

:as

1 ~n11s subJoJCL 1s (:Xpla1ni;d 1n "/:>·/11111 lt11d Jn1cn1n1101u1J R.1£ h1s·:

'['\,·o,

Cbapt c:.r

'

" n le n ob l e P r op

h cc o f l s l a 111 ~tn.:ss

up o n r h i:\

f fl c l i n hi :s hi s Lo ricnl

s

pi;

:ch

J11 s r: ·an ; \\· i; ll P

il [;rlro a ge . He

sA icl :

" O p~op l~. yo ur

Lo td

is O ne~

and y o u r l'it1h~r i s one

.

.+\ IJ o f yuu a n :

1'ro 1n J\d; 11 H, ; 111d A dan1 i~ (nuHI~)

Minority Rights

35

JI is perhaps for this fuudamenlal reason !hat the Qur'ao has used the word ' UI1iII1ah' instead o f (na1iou). and bas

calkd a uuitcd society which is composed of diffe re nt ·a single ummab.'

For this reason, guaranteed by 1he

problem' aris.es iu the form of miuority, di scrimiuatio u or rnce, aod every illusory privilege is coudc mucd and ahol- ished. The Imam A li (A.S .) 0 s tated indispurnhlc Islamic

in 1be fo llowi ng brief but profound s cnt·el)cc io the of !hose who demanded privileges 011 the basis o f

nobility of blood and race:

p r incipl e preseuce

races

iu au Islamic socicly, the unity o f wbich is uuity of thought, belie f and resoluliou, oo

Who e ver accepts our faith ·and undertakes o ur covenanl,

the precepts oftbe Qur' an and tho Is lamic laws aud rules will

be appli c abl e

another except in piety aod uprightness."

Lo him , and no one has any supcriori Ly over

Convcnt.ional Citizenship

under certain

condiiioos, cao 1akc part, aud formally join t.bo;: Muslims and

by mean s o f a

united to fonn a single Ummah.

lo

tbc

Islamic society uoo-Musli.ms,

too

bi - lMeral ag :rccmcnt with !h e m Ib ey b ~co.m.,

of

dust. The 1110 s' honoure d of you in the -sigh1 of

A.Jla h i:-. 1ht: 1u·os.1 pious

of you. There is 110 supel'iol'hy fo((t Hn AJ'~1b over H noo·An1b, an<l lhr nll

r a

rc<l, exce p t accu l'dlng to hi :.-.: piccy . I "'''t: J <li:l ivl:-n::d {t h.: n '\!S:.<tgi:)'! () 1\ ll ali, be ,,,.i,n~:;sl { .et rhe prcse n1 inforn i 1hc Hb:te n1 : ·

n o r f<>r ~ Tt'tJ 1.)V .:r fl \vh1I

oon /u a b o v e 1 · a n An1b

:

·, nc > r Cb r ~ ' " hih .~ 1,. lv

;

When A1ninJ) Mu'n•inin (A .S.} \\•as div iding th

:

spo ils :unong lh~

l'v1us li1ns , ao Mb obj~c.t~d ,

non· Arilb. rhe lsnii1u St1id: "I sec no merit in 1his spoi l Jb r the childre n of ls111ael o ver others.··

· (a .s.) stao <ls for '<1/1J.v!Jis-s.'t!.tn1{i.e. pcRcc be upon hiln) .

he Sl'l\\ 1 h · i s s har e

s in1i l:~r to

1hal of n

,b~n

"

pcRcc be upon hiln) . he Sl'l\\ 1 h · i s s har e s

36

Minority Rights

This kind of cirizcnship which is acquired through a bi-

lateral convenlion is called Dbimma in the terminology of

Islamic jurisprudence, and the person coucludi.ng such an

agreement with the Muslims is called a 'Dhimmi '.

Iii such agreements Jews, Christians aud Magians (fire- worsbippcrs) can participate, and after signing the agreement rhey become meu1bers of rbe great Islamic society and arc regarded among rbe lslamic conveutiooal ci1izcas, and as Dhimmis, Ibey enjoy all tbe righrs, freedoms and security

through-our the lslamic realm. as granted to them iu accor-

dance with the agreement they had accepted and s_igned. A ckar example of this type of agreement was the national uni1y ag reemeot whicb was signed by the Prophet and the

Jews in tl1e early days of his migration to a.l-Medinah.

By mcaus of this agreement the Holy prophe t united varj- ous 1ribcs of al-Medinah and formed a single 11mm1tb consist-

ing

agreement that the allies formed a distinct

Umm1th in w hich

th e Jews preser_vecl their own creed and the Mus lims ke pt

lll eirs, and in case of any difference, 1hey had to refer to Al- lah and His Prophet (namely the law oflslam). 1 Thus non-Muslims are never considered ali ens and for- eigners io <to lslamic r e alm and govenu:neu 1, and 1he word

'a li en' ce d es its plac e in th " Ts lami c law and jurisprud e nc e to

of Muslims, Jews and Arabs . It was

sripulated in this

'a

lly ', which is more huniaae and mag11ifice ot. As 1be

agreement is voluntarily concluded by both sides, ihe s piril of

unity

and

barn1ony -and

s piritual

bo nd

wli ich

have

!he ir

~ource in option and will power, spreads a shadow of kind- ness, justice and co-operation over the relations of the Mus-

lims wilh their allies.

' Jbn lli sham 's Simh , vol. I, p. 503

Minority Rights

37

As will be discussed in later cbaptcts, the rights, privileges and freedoms which have been envisaged in the lsl11mic law

for th e allies (dhimmis) are by no means comparable with the

least ri ghts determined for aliens today on the llmphatic rec- ommendations of jurisl~. United Natioos Orgaoizatioo. aod its Charter and in the reciprocal trea ties in the present pro- gressive and civilized world. Is lamic law is not only free froro the bad feelings of alienation io the relationship of ali - ens with the oilier cili;r,ens of ti.le country Ibey reside iu, b11t actually there exisL~. in ii mo.ral bond and a spirit of unity as a result ofits humane manifestations.

Two Fundamental Poin ts

To make a more complete survey of the aiiove subject it would be necessary to pay cere fol 11lleution lo the following two points:

l. The nature of th e trihute agreement (dhimmah ) and Lbe

rights aud privil~goes granted lo 1he allies residing io the realm of the Is lamic gover111nen1 according t o that agre~m ~111. as well as its essential conditions, terms. political and legal consequences. 2. The right of admitting non-Muslims iu tl1c Islamic realm on the basis of personal agreement of immunity is contirmcd, besides its ualure and legal implications.

is ba.sed on !he pri11-

As the discuss ion of these two points

ciple of respec1ing tbe commitments and obligation stipu lated in reciprocal agreeme11L<, we must begiu with a bri e f' s11rvey of the legal value of agreements aud iuternational treatks in the Islamic law, and then, by Allah' s help, we shall deal with the first point. leaving the second one to another OJ>J>Orluni1y on account of the size of this book.

Legal Value ofthe Agreements

T here is no doubt tba1 the principle of ·'ae<:~pting ob-

ligations'' is 1be basis of every kind of social lite. If

we cousider

human inc lination

towards s.ocial life as

ao involuntary and innate atlraction, the n we must tl1iok of "acc.epting ol>ligations" as som~tbing natural and iucvitahle. lt is this natural principle tliat 'manifests itself in an indi- vidual' s li.te as a pledge towards a personal program -of order and assiduity; and in the world of creation, as acceptance of

objective realities and scientific facts; and in connection with acceptance, and acknowledgment, of the Creator of the uni- verse it is manifested as faith and religious ol>ligations. Other signs and manifestation of the principle of accep-

tance of obligation

his respect for law aod social rules , and a w ider basis, in i11- ternatio11al relations, in universal treaties and convt:ntit>ns

audio man's remaiuiug faithful ta his pledges.

are iu~orporated in man 's social relations,

For Ibis reasoo the roo ts of 'inclination towards obliga-

are the

same principle, aud by admitting them 10 be oatUl'al. this in- clination to obligations is considered as the nobles! inherent humao sentiments.

1io11s'

and ' respect for and

fulfilment of pledg1:s'

I

40

Minority Rights

13y paying allenlion to such principles and inherent roots we can realise 1bc value of obligations aud agreements and their humane, natural necessity throughout !lie human life, especially in social life, and in the greater sociely of iu1crna- tional relations. /\s the real and exclusive humau life m11s1 be

based on prindples, natural desires and on lh<:! demands of mau' s special oa1Ure, and since any devia1iou aud shortcom- ing related t o the,~e natural princip l es and d es ir e s are accom- panied l>y a deviation and dcfccl iu 1be iudividual lifo of mcu thus, it follows 1hat th e l ives of nations, too, in 1be greater socie1y o f mairkind, cauuol be fulfilled in a worth mauuer iu

liuc with man ' s natural desire without

nation<tl commitments and agreements. Disregarding 1bc natural roots of ihc priuciple (if the

" necessity or accepting commitments'·. a survey of 1be living conditio ns of na1ions aod 1hc cb aogcs in iuteroa1io11al life wbicl1 can under various conditions cause transformations in the ioterests and probably cvco in 1bc cx:istcucc of nations,

clearly shows the intellectual. logical and vital necessity of

acce pting irllemational agreements and

Evide ntly if is 001 possible under all conditions to resort to

t orc c for th e pr~servati oo of oati o 1rnl iu1erests aud attainment of desired gains. If we o verlook the difficult ies of securing and using powe r, we cao.uo1 ig nore the fact and the tradition that e very power is eve ntually vanquished by anotber pow<:lr. The refore, an incliu-atiou towards obligations and accep- tance of inte.matioual agreements may be considered the best way fo r the preservation of the interests and rights of nations. and the necessily which logic and intellect induct in the in- 1ematiooal life of human beings.

being has od ou inler-

obligaiions.

Minority Rights

4·1

Moreover, peace aud co-exislencc are fundamentally

among most revered human ideals. aod. wi1bou1 a doubt, of the undeniable mental and vital human wanls. for the es·tab- lishmenl and permanence of peace and co-cxistcocc, uo

deepet

more effective and practical factor can he found tha n

principle of acceptanee of obligalions aud couelusion of in-

tematiooal agrccmcuts. lntemational agreements constimte the bes t legal bounda-

ries for !he rights and ioterests of nations, and »re IU<! most pot e nt guarantee for the establishmen t aud maiatainanc~ of pcac.c, as well as 1be most effecfive media of uudcrstaudiug and concord in the life oflh e big human society. Obviously peace legally and convincingly be besl incul-

cated in th e relation of na1ioos wb c o it s root s de~ply p

tratc

through pacts and agre9meu1s, and, like other spiritual durics or ethical pducipks and natural desires of nations, develop a profound link. We dare say thal human beings wil l ue vcr find peace as long as they do not limit their greet!, ambitio us and profit-seekings within the framework of pacls and agree,. meuts.

: n e -

t;be spiritlial

and

moral

emotions of humau

bci ngs

The Only Legal Source

J.,

It is usual in l.egal discussions to lake the principles of

pos itive

Law' along wilh the inlernatioual agreements as the three sources oflhe Iaternalional Law_ There may exist a rea!5o.O io the minds of 1he jurists for multiplying legal so.urces, but, u11on rctl9ction, Whal seems decisive iu the natllre of !he above principles 1s. the s ingular-

' In1ernational Traditions

and

Customs'

and

' !be

42

Minority Rights

ily of the source of the International law and the conver- gence of the above principles oo that singularity which can be nothing but the commi1meots and agreements mentioned above. If we rdlecl on the roo1 of lnteruatioual Traditions and Cusloms and lbe factors lhat create and circulate them, we will fi.nd their earlies1 forms 10 be a kh1d of limited agrce- mt:nt by whicb individuals or some groups have bound lhem-

sdves. And then. o the r groups who have fell an inclinatiot1 to, or a need for, that agreement io tl1cir relationships, have gradually joined it and undenaken its observance. Suhse- quet11 .commi101euts have naturally extended lhe iu11ucncc of such agreements and have eventually given 1hem the form of International Tradition and Customs. Why do nations consider tbcmsclvcs bound, in iutcma- 1ional fields. to observe tbe loternali<JOal Traditions, Cus-

toms.

iog them cvcu after realizing that they are no1 being respec1ed

by other governments? What is the philosQphy or the princi- ple of reciprocity in such cases? The answer to such questions is nothing but that the accep- tance of the rules based on International Traditions and Cus- toms hinds other nations because of an implied obliga1ion and commitme nt to wbai the ma.iority have c.01nm itted them- selves, and like other moral principles and olher ·aspects or

social lite, th ey acquire a binding force and respect l3u1 it goes without saying that such au acccptanc~, inspite or its

incumbe ncy,

nature aod is inseparable from iL

.Exigencies and Principles'! ls there a need for observ-

never loses its cooventional and contractual

lu compari og 1hese· two legal so urc es to show which of

Minority Rights

43

them is more i111po.rtao1 in international questions, some ju- rists have made the following statement: "Though the inter- national Traditions and Customs arc not codified, yet they possess this advantage, over other legal sources, that 1 they are older and more univer,~al,whereas agreements lack 11\ese two features and cannot therefore be abs0lu1ely and generally

binding."

George Sel, a famous juris1, and ProJessor Alvarez, on American jurist. relying on the above s 1atcu1 e11 1, bavc pr~ fcrrcd the priority of the exigencies of ln1e.rnatio1rnl Trndi- 1ioos and Customs in inte rnational disputes. '

A tJumbcr of other jurists attach more importance and give

agreements since

they are better codi'fied aud more explicit, and the elemenL~ of option, resolution and indepeudcuce are more evident in them, and tbcy consider the change in 1l1e l11terna1iooal Tra- ditions aod Customs, which are gradually a11d actually re- placed by agreement~,due to tbc said principle. 1 ln view of tb<' common basis of ' the International Tradi- tions aod Customs' and 'agre.e ·menls ' in tbe facror of ob li~a­ tion or commitment both of which are derived fro m tbis sin- gle principle, it must be said that the arguments offered in the above eval~ation in support of each ol' tbe two said vie ws lack legal va)ue from the viewpoint of conclusion sioce nci- 1bcr the generality nor the uuconditioucd stale of tbe ohliga- tious resulting from the luternation8l Traditions and Cus- toms, nor the explicitness and codificariou of.agr~emems,nor historical preced e.nee can serve as a distinctive factor iu d.:-

priority

to

commitments

resulting

from

' The Gener•/ Jn/;:m•tio11•/ Rights, by Dr. ~afdori, Vol. I, pp. 162- 164,

1

fbid,

.l

from ' The Gener•/ Jn/;:m•tio11•/ Rights, by Dr. ~afdori, Vol. I, pp. 162- 164, 1 fbid,

11

44

Minorily Righls

terroiniog ti\eir hierarchy and legal value,~.We can even sup- pose each of the apparent dislinctioos lo belong tc1 the otber side, as in the general agreements which are approved and signed by all natiops, or the codi fied commitmenls derived from the recorded (nternational Traditions and Customs.

Initially, i1 should not be neglected Iii.al rule and princ ipl e binding commitments must always stem from resolulion, o p- lioo aud uUe r iude peudcocc. Ou Ibis basis th e cou1radiction of ln1erna1ional Tradilioos aod Customs wi1h obligalions and agreements can be conceivable on ly when the ohligalioos

Cus toms b e in agreeme n1 and lo be ao imposi-

conflict with both parties or one party io lhc

lack 1he elemeDI of free will and deemed

tiou. Clearly, witl1 such a supposilion, the Luternational Tra- ditions and Cusloms in relation 10 the co ncem.:d go vero- menls lose their legal value. The imposition of aoy undertak- ing, even if i1 takes the foro1 of tbe lnlcmational Traditi ons and Cusloms. is considered a violal!on of the right of the re- lated nations 10 freedom and independence. Whcu a lradition and a custom arc approved, obligations c.outrary to them are not possible. excepl through the breach of the previous commitme~t. In Ibis case, too, the s upposed conflict be tween the obligations resulting from the luleroa-

ri o ual Traditions and Customs,

and obligations due 10 an

arisiog from the lnteroational Traditions and

agreeme1JI is ioconceivahle, and a discuss io n of tbe priority right of either is useless. lt is surprising !hat Alvares, head of the New School of Int(lrnational Law, considers the violation of the freedom aod independence of oalions, io connection with the above point, as a legitimale right for lite United Na tions Organisation. Ue

Minority Rights

45

bdicvcs: ·' Some decisions of 1hc Uni1cd Nations arc hind ing

fol' wor1d g<lvcnut\i!n1s ev¢n if some: g<.lVt.:a1n1

:nts

hav

:

HtH

explicitly dcchm:d their agreement with 1hose decisions.'''

Moreov~r. he· coosidcrs th~ gl

!n.C.ral

l~gal prttH.:.iph.!$ at.:-

cept ed by t11c

destiny of other uatious and by adding several <ll hcr art ides.

he mentions 1h c sc I ) ar1iclc s na1ional laws.

,.;ivi lised(!) na1ions prevai li.11g nw r 1hc w ill and

a s the ~o urcc 1 1f 1hc new i11tcr -

The Role of Free Will in

Legal Matters :

will is 1h,• m11st aul hcnti• hasis

~ad css~utial audi1or of hutll an life. an d witho111 douh1. 1h;; va.luc of human lik in bolh its individual and w ide social di-

mensions is wbolly 1,;on11cc 1c 1I

Respect for frccdom of lhc

wi1h th·~ cx1e111 of 1hc n1k <>r

thi s principle in the c.o ndi1 io11s ru ling <Wer l\!c ir lives . Al l laws and regulations . x.rc also s ubjccl t1> Ibi s ha s it principk ·and law oflnunan li fo and lh,.;rc is no cxccp1iu11 111 it.

of obl iga ti o n s o r comn11 1m c 111s. 1h c 11a1ural

1 which \Vt.:: proved ~• fbc beginning t'>f 1bj~ tllscu.s-

sion , CV~ll hy lh c gr~cc of lh c free will of b1llh parlk s . <> u l y .

1.:latm hu111an r~SJll'CI and J~gaJ Wt)t1h IH){\;vithsl<tudin.g i1ll ils

.ramili ea1io11s and cxh: ns ivc role. Oppns ilc IO 1he prin<'ipk of free will is lhc 1\.;ieckd •nd

una<:ec plahl c pri11c1pk of impMilic>n, Which in an y form and sh;opc m dcriwd from any fac tor or clement. ;, rnnJc1n11cd

•nd rcj

-

The a cceptanc e

'.\!SSity

ncc

:ch:d

hy man· s 11a1urc.

1:t)r thi s n:ason

rh~ l~g:al r~sulls ,1r oh l iga l ion s ancJ a g rc

:

m~uls which arc C<) ns id crc d hi ncling

somi::ihin g inlp\)S\!d si ne

: an

:

cv~ry )('gal H~n

:

IH> I

:n1\.!nl

h \!

is

f<!k c 11 as

d

:ri

v

:<l

1 lh od., p. 165

I

11,

I

l

46

Minority Rights

from free w ill. We have discussed this point in detail in our previous

a nal ysis, and our couc lusiun now is 1bat io tht: sphere o f th e

inlernatiooal relations, as iu ocher spber~s of hu lJlao life, the priociple of free will must be recognised as tile o nly govern- ing principle, aud all iutemutional laws and every regulntion which uccessitate the acccprnnce of respousibility and commitment arc lo be derivt:d from this human principle. For this reason voluntary undenakings are the main source and fundamc utal basis o f intcrnatioual Jaw, and the legal re- lations between govcrumcnts are secured on elements which

embody

s uc h

lnterua tioual T radi 1ioos aod Customs. posilive

their voluntary uudcrrnkings . Every other princi ple

as •he

laws, regu lations and d ecisions of world organisations, or

l ega l rule s

a pprov .:d

by

c i vil i se d governments a~ wd l as

ot b cr princ i p les 1'1at arc conside red by the _juri sts as sources

of m:w international law. are wit hout validi1y aud lega l value if Ibey !Hck vo lu ntary u nd.,nakiog; as man 's nature and life acccpl o nly that kiod of obligatio n w hic h is ba~ed oo the principle of voluntary acceptance.

T he

and its Effects:

Now we CAU easily understand the nature of agreements and pacts, both wi1uiu the framework of iut.:rnational 1rnd rntcma l relations defined as follows:

·Au agrl!e01en1 is a kind of voluntary undertaking which is

Nature of the Agrncmcnl

formally accepted by

t b e p c rfom1a n ce or re lin411i s h111c u1 of a ta~k or la s k s in

ah so lul c o r C() ndit i o nal mann~r .'

two tlf mo re parties for the purpose of

a u

M;,IOrity Rigltts

47

b y previous

agr.:emc n1 and good wi ll of 1bc parti~ concerned, we may

couclud.: that io defini ng an undertaking the phrase

•agree m ~nt based on mutual expe di e n c y ' may b e l•\)< <' 11 tu mean a 'requisite condition for the uodcrtaking', 001 'a n e le- m ent of substantive affect.'

C l culy , an u11de r taking in !he seose or !he explicitne.~s or

implied co mmilm<mt in i t. as

between agreements and the ln1eroational Traditions and

C ustoms. does 001 create any diffcrcoce in the substance of au uodcrlaking. Similarly, 1bc fact tbat an umlcrlaking may

h e

or ils being pcrmaoeot or tem porary, bas no effect on th.:

substance o f the underlaking. A~cr all, the

As uml ~rlak ings are

usually

ftCCOm p anied

described io th.: co mparison

general and absolute 01 confin e d to

one tl( seve ral p a rtie~.

dTcct of the

agreement in all

the rc.o;ervations t:ovisagcd by the co ntracting parties i 11 the

text of the agreement. It goo:.; wit bout sayi ng thal the mauucr of concluding

agreemenls may be different in different cases a11d under dif-

fo re nt co oditio us , aod such conditions as 1he drawing up

of th e a grcc mcot, and th t: writ1 c 11 m c u1io11 of th e pas o n s or Ut e group r es ponsible fo r it at th e ope ning sec l ion of th e tcx 1, and the s igning or preparing copies of the agrccmcu1. or of the previous negotiatioo, e tc. are mosily fom1ali1ics 1he ab-

sence of which has no effect on the l

ment if it bas bcco legally coocludcd. What is meant by the eITec1s of au ag1eemen1 is the re- spoosibili1ics aod legal bindings to wbich the contrac ling parti es ar c co mmitted upon lh~ co o cl u sio n of the l ega l for- malities of the agreement, or the rigbts which are envisaged I I

cases depends o n the quality and qu•ulity of

tcxl

:g•l

worlb of the agre

'-

4fl

Minority Rights

for Ille contractors according to the tem1s of 1he text o f tJ~e agreement, with lhe provision that the contractors have uo obligaliou at all to make use of the second section. Naturally, the said effects have legal v.alue only in connec- tion with the contracto.rs and signatories lo the agreement, and for this reason it becomes legal. But the legality o f s ucl1 an agreem eoL do es not mean Lba: ii is biudiug on all, even ou 1hc govcmmcnts that hav e not signed it 1 Genernlly speaking, in the agreei:nenis concluded betwe<::n two or 01ore goverumeu1s, lhe binding legal dimensions are applicable olily to the conlrac1ors, and they do uot cover olher goverumcms who have not signed it. But their nou- obligator; rights and consequences may be considered for

othe r uncomilled govenuneuls, or, due 10 special te nns of !lie a greemen t, u ucom ittcd governm<::nts. too. may b e 11efi1 by i1s advantages.

The Worth oflhe Agreements in Islam:

T be previous surve ys acquaint us with the deep philosophy

of1he value, respect aod iwpor1aucc that lslam attaches to the que&tio u of agreement.s in various aspec1s of the human life. This eva luation and legal importance which are an exclusive featu re of Islamic law can he galbered from 1bc sludy of the texll; which exisl wi1hi11 the folds cir lhe documents rela1ed to

Mr . S tArk, Lhe Br i 1·ish '"'"Yer, b e li eves tlrn1 in o rd er 10 consider agre.:anen( n1nong the legal coven;ao,s. ils regulacioos nluSt be agrut able

t Q HIJ Ill e go,•or.nme n ts, o r m os! of 1he r11, pani c ul a rly 1hc big o nes. 11 is

ao

1

la ken for &•'" nied iltlt l s uch nn agreomenl will enjoy fuU impo rlJla co, and, practically , even th¢ governments \\lhich had oot openly nccepted il

would no! be ab le 10 acl agains1 i1. Aclually, "' has already been ex-

plained. li re rejec tion of th is theory , too , i." o bvio us.

Minority Rights

49

the Islamic laws. Now yo,1 may have a glance at some of these texts:

laws. Now yo,1 may have a glance at some of these texts: 1. "O you who

1. "O you who believe, fuf/il the obligalioos. " (Sim1tul-lvla 'id11hll)

fuf/il the obligalioos. " (Sim1tul-lvla 'id11hll) 2. "ADd JU/Jil thc co11c1111nt o!Allah when yo u have

2. "ADd JU/Jil thc co11c1111nt o!Allah when yo u have made

covenanl, and do not break the oaths af/er making them 18.sl "

(Silt11tun-Na{JV9J)

What is more worthy ofnotice in this verse is rhat here the

Qur'An speaks of agi·ccments as the covenant of Allah ·and

reminds the contracting parties that concluding an agreement

is like coucJudiog a c<)venant with Allah, and such a covenant is subject to beiug called to accou11t. Anot11er vecsc says:

subject to beiug called to accou11t. Anot11er vecsc says: "And A.ll~b '.I· coven11Dt shall he inquired

"And A.ll~b'.I· coven11Dt shall he inquired of'

(Stirntul A~17:abll.5)

coven11Dt shall he inquired of' (Sti rntul A~17:abll.5) 3. "So fulfil lheir agreement 10 lhe end

so

Minority Rights

Allah loves those who feq Allah"

(Sorat11t- Tawbah/4)

Allah loves those who feq Allah" (Sorat11t- Tawbah/4) 4. "So long as they a1·e fJ11c to

4. "So long as they a1·e fJ11c to yo11, be tr11e to them, surely

Allah loves those who are careful of'lheir duty. "

(Sorafl/t-Tawbah/7)

are careful of'lheir duty. " (Sorafl/t-Tawbah/7) .5. "And fil./fil the covenant; surely 1he covenant

.5. "And fil./fil the covenant; surely 1he covenant shall be

qucsrioocd about. "

(Surafl/f Jsra '134)

shall be qucsrioocd about. " (Surafl/f Jsra '134) 6. "And the performers of their covenant when

6. "And the performers of their covenant when they make

.,

one.

(Suratul Baqarah/177)

covenant when they make . , one. (Suratul Baqarah/177) 7. ·'Those who f'ullil the promise of

7. ·'Those who f'ullil the promise of A.Dab IJDd do 1101 breal< rhe covenant. "

(Soratur-Ra 'd/20)

Minority Rights

51

fl

.,,. ,

,,,,.

,,,-.,,,

,

~.~.,,

;.,~· p.' •e•

:;<'r-~-'~ -r -.- ,

,

,

:-j ""J.:il\

8. "/Ind those who ue .keepers of their trusls and their cove11anl. "

(S1iratul Mu'minun/4) ond (Stiratul iW:a 'adj(J2)

lo the said few Qur'aoic verses, the importance of the

agreements and the necessity of fulfilling rhcm are taken be- yond tbeir legal limits to the extent of regarding them to be the mark of faith, as ii seems that the good fulfillmeu1 of a

covenant stems from failh iL~elf. while breaking one's word is caused by a weak faith or a complete. uofailhfullness, as is

inducted from the verses

effect that giving a word and keeping it are completely con- nected to the spiri1 of fearing Allah. aod to separate these rwo would cause the destruction of that spirit There are numerous Islamic narratives to th.is effect, some of which refer to thO§e who break their protnises as rene-

4 and 7 of Stwuu/ Batti 'ah, lo the

gades and faithless, as the breach of promise is regarded one of the capital sins.

The Mandate of the Imam Ali (A.S.)

We may snady the logic of Isla m iu a wholly clear and explicit way in the famous mandate of the Imam Ali concern-

ing respect for agreemenL~. their legal worth and the neces- sity of their fulfillmenL

A part of this mandate,

addr.esscd

10

Malik

al-Ashlar

(g<,>vemor off:gypi), says:

" Whenever you cooclur.le an agrcc.menr witb yom enemy or bound him with yo-ur pact and commitment, fulfil your promise failbfu.lly and observe yo11r agreemeur most hoo- eslly, and use ymrr possibilities like a shield lo prolect what

52

Minority Rights

you bavc u_udertakcu, for among the ordioances of Allah !her e is nothing as impo rtaot and necessary as the fulfilment of promise in a society of people inspire of the differences of their desires and views. ''Do not se.el.\ excuse~ io your covenant, and allow no trea-

so o and trickery to affec1 your promise. Do mH mislead

enemy by deceit. No douln only the ignorant opposes Allah

bas by fl is Grace placed promise se rvants as a m eans of tranquility

sanctuary for people lo livl:l in peace, and through it to· find

your

aod coveoaot among His of life and bas made

it

a

ble~siogs and

goodnesses. Th.:refore oo fraud , doubt nor d e-

ceit are permissibk in it.

'The difficulty of the tnsk iu which you mus t observ e Al-

y(lu to violate that cove nant

uufaidy, for, your fortitude iu tolerating the hardship and

ditticulty which you hope to he llventually rid of, is bct1or

tbao the trick aud the cunning whose

p11uisl1ment you are

afraid 0 1; fearing being called co accouu1

by A.ll ab without

lah's covenant should not lead

having tbe hope of asking forgiveness in chis and the next

wo rld ~." 1

Invitation to Conclude Political

Agreements

In the Islamic ideology, peace and co-exis tence arc consid- e red tbc most fu ndamental principles in ioten:1ationaJ rela- tions. For this reason it is recommended to make use of suit- abl e opportunities for ~trengtheniog and c.reatiog conditions f()r peac e -treati es iu the foreign relations or the 1.slami c ;;oci -

1 N11hjul Bn!Ag/Jt'11, by Sh1tykh Mu~ammad ·Atx luh , pp . 536- 7 .

Minority Rights

53

ely. 1 Io order to establish peace among nations and prevent the rise of hostile relations a11d bloody dispufes, Islam bas nol only given a greal legal value to it1lcrnll1iou-al pacls and agreements, but if has also invited other oa fioos and groups

to conclude such pacts and agreements and has recommended tlie Isl amic s.ocicty to alw~ys be a pioneer in Ibis !ask and nol to abstain from every effori to creafc aud expand a basis for i1

iu all human societies, and

use e very possibility

to alfain 10

this humau and Islamic ldcal. In many cases this recommen- dation is mad e an incumben t duly and a n obligatio n. and the conclusion of peace-a·greements is considered a duty of com- petenr and responsible Islamic governments. This duty is em- phasised whcu inclination is shown by non-Muslim govenJ- menls and groups for the conclusion of peace treaties. It is on the basis of "the originality of peace in int.ema-

tional relations" that Islam considers 1bc duty of the legal

am11orities of the Islamic society is to welcome tbe proposals

which are n ol contrary to

for the conelusion of peace treaties

the genuine ideological goals of Islam. Tb~ logic of the Qu.r' an in this conneclion is as follows.

of the Qu.r' an in this conneclion is as follows. I. "Aod if they iocli11e to

I. "Aod if they iocli11e to peace, you, too, incline to ii and putyow··tJ'USlin Allah''. (Sl1rllflil-Aofli.J/61)

is very notewor-

thy, for it gives lbe implication tbat pea.ce and co-existence

What the Qur'an says in this coon ection

1 As Ibis subject has been fully di<eu<$ed "' our book "Islam and the

,bi1¢malional Rights'; there \\'as 'no need to repeat it.

I

I

I

54

Minority Rights

hclween human beings are so d esirable tha1 man should sbow love for 1bem and proceed towards ·tbem io tbe same way that a c hick !lies towards its mother uudcr whose wings ii finds a

secure baveo.

its mother uudcr whose wings ii finds a secure baveo. 2. 'Therc/oJ'(: i f they withdraw

2. 'Therc/oJ'(: i f they withdraw kom you and do not fight