Islamic land

*82 The prohibition enunciated at a time now long past forbidding Muslims to abjure their faith under penalty of death can not be considered effective today in Egypt; especially since the promulgation of the country's Constitution, which guarantees all the inhabitants of the territory absolute freedom of conscience, as a legal hindrance to freely converting from one religion to another . . . . [FN147]
Such liberty is, however, anathema to the classical Islamic regime given the shari'a equation of statal and religious allegiance. This has given rise to harsh sentences in the secular courts of such states. [FN148] Apostasy applies only to individuals who have accepted Islam or who are of Muslim paternity [FN149]; however, laws of blasphemy have been applied more broadly, indeed extraterritorially. To some extent they may be used to suppress, or to seek to suppress, dissent or divergence from the orthodox norm, and to reject compromise. [FN150] At least in principle, potential prosecution for apostasy may ground a petition for political asylum. [FN151]
Insofar as uncompromising, illiberal notions of religious hierarchy, preference and supremacy over norms common in non-Islamic jurisdictions are sought, recognition and enforcement in Western legal systems today are bound to come into conflict with ordre public. In a predominantly Muslim *83 country such as Egypt and Sudan, the norms of the "better religion" may be applied in conflict of laws cases as a matter of judicial interpretation. Aldeeb Abu-Sahlieh explains this: "According to Islam, religions are classed by degrees of preference as follows: Islam, Judaism, Christianity, Zoroastrianism . . . and in last place polytheists. The minor with one Christian and one Jewish parent is deemed Jewish." [FN152] It should be noted that such a preference for the dominant religion of the ruling and judging class existed too in the imperial era, notably in relation to validity of marriage. [FN153] In general, the native of a colony, [FN154] of a protectorate, [FN155] of a mandate [FN156] or of a trusteeship territory [FN157] possessed a separate and inferior personal status.
It goes without saying that in addition to creating particular problems in cross-border child abduction cases such assignment of religion by the state ignores the conflict with Jewish law, under which religion is only acquired through the mother or by conversion; [FN158] but here we are concerned with the effects of Islamic public policy. This is illustrated by the Zoghby-Hallaq [FN159] *84 case. The Hallaq spouses, Greek Catholics married according to the rites of their faith, separated, and the daughter remaining with her mother. To avoid his child support obligations the father converted to Islam. The shari'a court awarded him custody of the child, declaring that the child must follow whichever of her parents professed the "better religion", and that she risked learning from her mother elements of apostasy. The Greek Catholic court pronounced judgment in the opposite sense; the Egyptian Government was left to intervene. Although Law 462/1955 had suppressed shari'a courts, Egyptian civil courts scarcely changed the orientation of Egyptian law in the matter: Islamic norms would pre-empt any others in direct conflict with them, and the court adopted the shari'a decision. [FN160]
Canon law, [FN161] like Islamic law, punishes apostasy and to the degree that the state adopts religious law as its own, the objections of ordre public and fraude à la loi would seem to merge, disallowing resort to a rejected norm. Most Muslim and many African countries, following the patrilineal sense of Islamic and much customary law, have ignored the principle of gender equality that has elsewhere become an important factor in the assignment of nationality status. [FN162] It is excluded in Islam that a Muslim woman should, in the absence of his conversion to Islam, marry a non-Muslim man, or a Muslim man any but a Muslim woman or one whose religion possesses a scripture predating the Muslim era, i.e. a Christian or Jew, or a Zoroastrian. [FN163] As a result, one cannot expect to find case law of Muslim countries recognizing such marriages and their effects. On the other hand, Islamic courts, it appears, will not look behind conversions of convenience intended at validating *85 marriages, any more than they will do so with relation to divorces. [FN164] One may readily join the umma, but one attempts to leave it at one's peril.
The recognition in particular laws, explicitly [FN165] or implicitly, [FN166] of Muslim solidarity and unified "citizenship" is a reflection of cultural and sociological fact [FN167] rather than legal rights actually afforded to those within its purview. It may reflect as well the concept, principal object of review here, of inalienability of Muslim land. The distinction between nationality of a dar al-Islam and of a dar al-harb has significant meaning to the Muslim migrant. [FN168] The law of the dar al-Islam but not that of the dar al-harb will implicitly recognize the religious distinction which, even if it is absent from the nationality code itself, must be inherent in the minds of those who interpret it. For this reason social fact melds into jurisprudence without being easily subject to objective analysis, although Elgeddawy and others have attempted to do so in the context of private international law.
It is beyond the scope of this study to do more than suggest in this connection that the relationship between Muslim migrants and Islamic states of origin differs from that of Muslim migrants with pluralist states of origin having large Muslim populations, such as India, Lebanon and Nigeria. For some the Muslim state may be a proxy for the Islamic Nation, and rejection of the claims of perpetual allegiance tantamount to apostasy may account for *86 reluctance by some migrants to seek the nationality of a non-Muslim state. [FN169] The 1995 study by Sahil and Ostby for EUROSTAT of European naturalizations showed different propensities to naturalize by migrants of different states of origin, but did not draw firm conclusions as to the reasons. [FN170] One can only note that there is an apparent reluctance of some migrants from certain states to sever links with the land of birth, and an apparent division of allegiance between economic interests in the receiving state and the economic and cultural-religious interests of the sending state. Such tendencies may be reinforced by both law and politics in the two states concerned. Western nations have responded variously with respect to naturalization and to grant of nationality at birth. Yet, the matter of allegiance in the sense of personal loyalty, linked in this case to religion, is one of human rights and personal autonomy for which no criticism is permissible. In the absence of judicial transparency in most countries of origin we may be left to make assumptions from statistics and to generalize from occasional insights in Western legal materials. [FN171]
Conclusion

Conflict between religious and civil law and activism to bring the latter into conformity with the former is scarcely unique to the Muslim experience. Neither is the perversity of democracy in matters of human rights and legitimacy of government, [FN172] an issue of some concern since increased reliance upon shari'a in the Islamic world is bound to produce greater conflict with the West: in private and public international law, human rights law and, indeed, refugee law. . . . [FN173] Insofar as Islam asserts a jealous territoriality and *87 its most politically active or politically successful adherents derive an anti-Western mission from shari'a, the foundation for that mission will be found among the legal principles discussed here. No higher norms, no jus gentium from outside shari'a will be admitted. Discourse is further limited by the fact that the development of those international law norms postdates by many centuries the freezing of shari'a norms. Views of Orientalists, [FN174] international lawyers and diplomats are scarcely likely to be seen as relevant by those whose convictions most need to be influenced. On the other hand, nothing impedes the introduction into Islamic practice of international cooperation and of new principles not inconsistent with accepted doctrine, including the criminal prosecution of terrorism. [FN175]

The law is, ultimately, founded upon consensus and upon acceptance of the juridical structure by which it is interpreted. Islam has long accommodated situations of military insufficiency and minority status by compromise and patience. Islamists have countenanced learning the scientific and technological discoveries of the West from non-Islamic sources until such time as qualified observant Muslim teachers are available. [FN176] Insofar as those elements that undertake terrorism find theoretical support in the principles discussed here, it may be that a universal commitment to treat terrorism as piracy could be effective. For that, however, the potential counter-weapon of oil may need to be neutralized: in the absence of an adoption of antitrust theory, no principle of international law will exist to counter a refusal to trade in oil promoted, should they control substantial sources of petroleum, by Islamic literalists committed to opposing Western presence in Muslim land.
The conundrum for the West is that just as there are those who would use the democratic process to extinguish democracy there are those would declaim human rights violations by others while themselves committing them. Militant Islamists, and indeed governments of Muslim states holding to Islamic perspectives of allegiance and apostasy, may demand the loyalty of expatriate Muslims. The 1951 Refugee Convention provides for an exception to refugee status in the case of violators of underlying Convention principles. [FN177] Constitutional norms are most at risk when the state and its institutions are under threat; this is the essence of the terror paradigm. The present *88 struggle is between the West and its "intrusive surrogates", Israel and those perceived as client rulers, even if Muslim, in Arab land--and a disparate community including some in the Muslim diaspora with history and claims perhaps partly invented (in the sense of Benedict Anderson [FN178] and Ernest Gellner [FN179]), but a community solidified nonetheless in opposition and in frustration. That Islam may not have a precise, defined concept of Muslim land is unlikely to prevent use of the concept as a focus of resentment and reaction. Gelber correctly detects no real room for accommodation between those who claim vested interests and historical rights and those who seek a vaguely defined "justice" and who direct their anger most particularly against the West. [FN180] Repetitive use of terms such as inalienable, inviolable and divine may frustrate, as perhaps they are intended to, dialog and attempts at compromise. Revisionist history, an expansionist, doctrinal notion of Muslim land and abandonment to the extremist tendency within Islam of the task of defining foreign-policy issues leave little scope for Western and International law as they developed in the second half of the twentieth century. For those, "Islamic land" includes all of Palestine and all of Israel. Should that territory be regained other formerly Muslim lands, less urgent targets now, could be claimed.
Extremism within the Israeli polity completes the blockage. Within Israel, inherently discriminatory provisions disadvantage not only alien Palestinian Arabs but to a significant extent citizen Israeli Arabs in access to land, and effectively, to the full panoply of citizens' rights. These may, at least, be negotiable as part of the democratic process as they are elements of civil, not religious, law. They have not heretofore been part of the Palestine discourse except implicitly, insofar as there is demand for repatriation of refugees and restoration of property. Muslim adherence to principles of infallible, unalterable shari'a: persistent jihad, irreversible waqf, punitive irtidad and a concept of sovereignty grounded in religion pose intractable problems for a West committed to personal autonomy and civil management of family relationships and property title, and opposed in general to perpetual trusts and religious intrusion in public affairs. To the extent that Islamic-law notions alien to Western understanding motivate not only Islamists but (if indeed they do) a silent majority of Arabs and Muslims, Western precedent, Western argument and International law norms seen as extensions of "Western" law lose force. The commonly accepted norms of human rights reject, *89 however, relativism and claim universality: to that degree they are equally as uncompromising as the dictates of shari'a. The Palestine conflict is in that light only a microcosm of the broader one between Islam and the West.
[FNa1]. Andrew Grossman is a retired U.S. Foreign Service Officer who served in Seoul, Abidjan, London, Tehran, Algiers and Geneva. He holds the degrees of B.A. in Economics (Clark), LL.B. (Columbia), M.A. in L.I.S. (University College London) and Licencié en droit européen et international, Maitre & Docteur en droit (Louvain) and is a member of the New York and District of Columbia Bars. He lives in London where he writes on private international law issues, especially in the fields of nationality, bankruptcy and tax.
[FN1]. Rania Maktabi, The Lebanese Census of 1932 Revisited. Who are the Lebanese?, 26 Brit. J. Middle E. Stud. 219 (1999). For an interesting comment about Rashid Rida's argument that Lebanon and Syria were not part of the dar al-Islam, see Khaled Abou el Fadl, Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities from the Second/Eighth to the Eleventh/Seventeenth Centuries, 1 Islamic L. & Soc. 141, 185 (1994).
[FN2]. Joseph Courbage, Reshuffling the Demographic Cards in Israel/Palestine, 28 J. Palestine Stud. 21 (1999). The CIA World Factbook 2001 reports the Muslim proportion of the population of the Gaza Strip as 98.7% and of the West Bank as 75% (inclusive of Israeli settlements).
[FN3]. Abdul Rahman Abbad, The Theology of the Land: An Islamic Perspective, 9/10 Al-Liqa J. 71, 75 (1997).
[FN4]. See Mahmood Monshipouri, Reform and the Human Rights Quandary: Islamists vs. Secularists, 41 J. Church & State 445 (1999); see also Natan Lerner, Group Rights and Discrimination in International Law (1991).
[FN5]. There are also tort law implications. See Jenco v. Islamic Republic of Iran, 154 F. Supp. 2d 27 (D.D.C. 2001); Ungar v. Palestinian Authority, 153 F.Supp. 2d 76 (D.R.I. 2001); Sutherland v. Islamic Republic of Iran, 151 F. Supp. 2d 27 (D.D.C. 2001); Eisenfeld v. Islamic Republic of Iran, 127 F. Supp. 2d 1 (D.D.C. 2000); Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97 (D.D.C. 2000); Anderson v. Islamic Republic of Iran, 90 F. Supp. 2d 107 (D.D.C. 2000); Cicippio v. Islamic Republic of Iran, 18 F. Supp. 2d 62 (D.D.C. 1998); Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998); Doe v. Islamic Salvation Front, 993 F. Supp. 3 (D.D.C. 1998); Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, 93 Am. J. Int'l L. 470 (1999); Richard K. Milin, Suing Terrorists and Their Private and State Supporters, N.Y.L.J., Oct. 29, 2001 at S1.
[FN6]. Khaled Hroub, Hamas: Political Thought and Practice 38 (2001).
[FN7]. See generally Sami Awad Aldeeb Abu-Sahlieh, Les mouvements islamistes et les droits de l'homme (1998) (selective and misleading use of Qur'anic verses). As one particular example, one must consider in each case whether a user of the term "occupied territories" is referring to territories occupied by Israel since 1967 or "all of Palestine" including the State of Israel.
[FN8]. Donna E. Arzt, Heroes or Heretics: Religious Dissidents Under Islamic Law, 14 Wis. Int'l L.J. 349 (1996) (discussing international human rights instruments).
[FN9]. Sayyid Qutb, Milestones 62 (1991).
[FN10]. See Ann Elizabeth Mayer, Law and Religion in the Middle East, 35 Am. J. Comp. L. 127 (1987), which argues that "[a]gainst a different historical background, the borrowing of Western law might not have become associated in the popular mind with Western imperialism, setting the stage for the contemporary association of Islamic law with nationalistic reactions to the former."
[FN11]. This is not a new issue and it is scarcely limited to Muslims: In re Jensen, (1976) 67 D.L.R.(3d) 514 (Can.), 69 I.L.R. 194 (naturalization oath); Roncarelli v. Duplessis, [1959] S.C.R. 121 (use of public facilities); Watch Tower Bible and Tract Society v. Mount Roskill Borough, [1959] N.Z.L.R. 1236 (S.Ct.) (reversing finding of "subversive"); Walsh v. Lord Advocate, [1956] 3 All E.R. 129 (H.L. 1956) (conscription); Adelaide Company of Jehovah's Witnesses v. Commonwealth, [1943] 67 C.L.R. 116 (Austl.) (prejudicial to conduct of war). For a case that did involve a Muslim, see In re Kassas, 788 F. Supp. 993 (M.D. Tenn. 1992) (naturalization refused to petitioner who would not "bear arms against an Islamic country").
[FN12]. Specifically to Kashmir, where the issues relate to demands for Islamic governance and merger with a Muslim state (i.e., the "Islamic Nation").
[FN13]. See Harold J. Laski, Law and the State, in Studies in Law and Politics 237, 246-47 (1932), reprinted in The Pluralist Theory of the State 197, at 205 (Paul Q. Hirst ed., 1989).
[FN14]. See Colin Imber, Ebu's-su'ud: The Islamic Legal Tradition 139-63 (1997); Joseph Schacht, An Introduction to Islamic Law 125-26 (1986); Amy Singer, A Note on Land and Identity: From Ze'amet to Waqf, in New Perspectives on Property and Land in the Middle East, 161, 161-73 (Roger Owen ed., 2000); Jeffrey A. Schoenblum, The Role of Legal Doctrine in the Decline of the Islamic Waqf: a Comparison With the Trust, 32 Vand. J. Transnat'l L. 1191 (1999); Miriam Hoexter, Huquq Allah and Huquq Al-Ibad as Reflected in the Waqf Institution, 19 Jerusalem Stud. Arabic & Islam 133 (1995); Aapeli Saarisalo, The Turkish Waqf, 19 Studia Orientalia No. 10 (1954).
[FN15]. India: Mussalman Wakf Validating Act, No. 6 of 1913; Mussalman Wakf Validating Act, No. 32 of 1930. The North American Islamic Trust was established in 1971 by the Muslim Students Association of the U.S. and Canada to serve as umbrella organization for holding waqf assets of Islamic communities in North America. Four awqaf (or charities recorded as such) appear among the organizations registered with the Charity Commission for England and Wales.
[FN16]. E.g., Abul Fata Mahomed Ishak v. Russomoy Dhur Chowdhry, (1894) 22 I.A. 76 (P.C.).
[FN17]. Thus East Pakistan State Acquisition and Tenure Act 1950 (Act XXVII of 1951) (control of land rents); Province of East Pakistan v. Mehdi Ali Kahn, [1958] 10 D.L.R. 96 (Can.); Jibendra Kishore v. Province of East Pakistan, P.L.D. 1959 S.C. 387 (Pak.) 9; Muhammad Nazmul Hoque, Critique of the Law of Waqf in Bangladesh (1982) (unpublished thesis, School of Oriental and African Studies) (on file with author).
[FN18]. Timur Kuran, The Provision of Public Goods under Islamic Law: Origins, Contributions, and Limitations of the Waqaf System (2001) (unpublished Research Paper No. C01-13), (on file USC Center for Law, Economics & Organization); Decree of 1854 of Mehmet Ali, Pasha of Egypt 1806-1847.
[FN19]. Le waqf dans le monde musulman contemporain (XIXe-XXe siècles) 11 (Faruk Bilici ed., 1994) (author's translation).
[FN20]. Covenant (Mithaq) of the Islamic Resistance Movement, Aug.18, 1988, (Hamas Covenant), art. 11; Andrea Nüsse, Muslim Palestine: The Ideology of Hamas 47-48 (1998) (citing Filastin al-Muslima, April 1990 at 25).
[FN21]. But see also Imad ad-din al-Isfahani, Conquête de la Syrie et de la Palestine par Saladin 92-101 (Henri Massé trans., 1972) (conquest of Jerusalem in 1187 C.E.).
[FN22]. A. Ben Shemesh, Taxation in Islam 24 (1965) (translation of Part 7 of Qudama ben Ja'far (d. circa 932), Kitab al-Kharaj); Paul L. Heck, The Construction of Knowledge in Islamic Civilization: Qudama b. Ja'far and his Kitab al kharaj wa-sina'at al-kitaba (2002).
[FN23]. 12 Muhammad ibn Jarir Tabari, The Battle of al-Qadisiyyah and the Conquest of Syria and Palestine 191 (Yohanan Friedmann trans., 1992).
[FN24]. Ra Ana Irfan Mahmud, Economic System Under Umar the Great 12-14, 85 (1977).
[FN25]. Abu'l-Hasan al-Mawardi, Al-Ahkam as-Sultaniyyah [The Laws of Islamic Governance] 227-51 (Asdullah Yate trans., 1996); id. at 248-49 ("Abu As' id al-Astakhri among many others, is of the opinion that 'Umar, may Allah be pleased with him, made [the Sawad] a waqf for all the Muslims and left it in the hands of its (previous) owners in return for the kharaj, imposed as a mark of their (temporary) purchase and paid as a kind of rent every year, although the period was not stipulated on account of the general interest involved"). The Sawad ("black") refers to part of Iraq.
[FN26]. Emmanuel Sivan, Radical Islam: Medieval Theology and Modern Politics (1985).
[FN27]. Ian Brownlie, Principles of Public International Law 138-45 (4th ed. 1990); Nguyen Quoc Dinh et al., Droit international public ß ß 317-321 (5th ed. 1994); see also U.N. Security Council Res. 242, Nov. 22, 1967 ("Emphasizing the inadmissibility of the acquisition of territory by war ...").
[FN28]. Elihu Lauterpacht, Jerusalem and the Holy Places 19 (1968).
[FN29]. Seminar of Arab Jurists on Palestine, Algiers, Jul. 22-27, 1967, The Palestine Question 203 (1968).
[FN30]. Bernard Lewis, The Jews of Islam 189-90 (1984) ("conversion of the Arab Jews to Zionism was a direct result of persecution"); cf. Yusuf al-Qaradowi, Non-Muslims in the Islamic Society (1985).
[FN31]. On internal conflicts and ambiguity in the sources of Islamic law, see Mir Wali Ullah, Muslim Jurisprudence and the Quranic Law of Crimes 3-39 (1982).
[FN32]. Joseph Schacht, Early Doctrines in Waqf, 60 Dogum Yili Münasebetiyle Fuad Köprülü armagani 444 (1953); C. Cahen, Réflexions sur le waqf ancien, 14 Studia Islamica 38 (1961).
[FN33]. Moshe Gil, The Earliest Waqf Foundations, 57 J. Near E. Stud. 125, 126 (1998); cf. Sahih Muslim, Book 13, "The Book of Bequests" (Kitab Al-Wasiyya), Book 013, No. 4006: "Umar acquired a land at Khaibar. He came to Allah's Apostle (may peace be upon him) and sought his advice in regard to it....."
[FN34]. Qur'an, 8:39-42.
[FN35]. See Bassam Tibi, War and Peace in Islam, in Islamic Political Ethics 175, 179 (Sohail H. Hashmi ed., 2002) ("The current dissention about the concept of jihad dates from the rise of political Islam and the eruption of sectarian religious strife."); Reuven Firestone, Jihad: The Origin of Holy War in Islam (1999); Rudolph Peters, Jihad in Classical and Modern Islam (1995); Alfred Morabia, Le gihad dans l'Islam medieval: le "combat sacré" des origins au XIIe siècle (1993); Majid Khadduri, War and Peace in the Law of Islam (1955); al-Mawardi, supra note 25, at 57-97.
[FN36]. Khaled Abou El Fadl, Muslim Minorities and Self-Restraint in Liberal Democracies, 29 Loy. L.A. L. Rev. 1525 (1996).
[FN37]. The constant juxtaposition of "inalienable" with "rights of the Palestinian people" would appear to be a politico-diplomatic, rather than a juridical, statement to the extent that the Israel-PLO Agreement signed at Washington, Sept. 28, 1995 ("Oslo II") constituted an attempt to compromise the claims of those same rights in exchange for eventual sovereign recognition and other benefits. For an analysis of Oslo II, see Yoram Dinstein, The International Legal Status of the West Bank and the Gaza Strip--1998, 28 Isr. Y.B. Hum. Rts. 37 (1999). "Inalienable" has also been used to describe the right of the inhabitants of East Timor to self-determination, U.N. Security Council Resolution No. 384, Dec. 22, 1975 1869th mtg.
[FN38]. U.N. Security Council Resolution No. 242, Nov. 22, 1967 1382nd mtg.; No. 338, Oct. 22, 1973 1747th mtg.
[FN39]. Battle of Yarmouk, Aug. 2, 636. The legitimacy of the Turkish Republic of Northern Cyprus has not entered this discourse although it has been argued at length elsewhere.
[FN40]. Gary Goertz & Paul F. Diehl, Territorial Changes and International Conflict 3-56 (Ch. 2, "A Territorial History of the International System") (1992); compare comments of Chief Justice Taney in Fleming v. Page, 50 U.S. 603 (1850) and J.J. Burlamaqui, The Principles of Politic Law, Pt. IV, Ch. VIII (1748).
[FN41]. Case concerning East Timor (Portugal v. Australia), 1995 I.C.J. 90 (June 30) (Australia having recognized Indonesian annexation of East Timor).
[FN42]. Compare Julius Stone, Israel and Palestine: Assault on the Law of Nations (1981) and Henry Cattan, Palestine and International Law (1973). See also Sharon Korman, The right of Conquest: The Acquisition of Territory by Force in International Law and Practice (1996).
[FN43]. U.N Conciliation Commission for Palestine, Absentee Property Law 5710-1950 (5710 No. 20, 4 L.S.I. 68) and amendments (5711 No. 29, 5 L.S.I. 64; 5716 No. 23, 10 L.S.I. 31; 5725 No. 23, 19 L.S.I. 55; 5727 No. 51, 21 L.S.I. 136; 5727 NO. 52, 21 L.S.I. 136); and see Alisa Rubin Peled, Towards autonomy? The Islamist movement's quest for control of Islamic institutions in Israel, 55 Middle E.J. 378 (2001); Nachman Tal, The Islamic Movement in Israel, 2 Strategic Assessment 6 (Jaffee Center for Strategic Studies, Tel Aviv University), Feb. 2000, available at