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The Rohingya Refugee Crisis: Legal Protection on International Law and

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DOI: 10.2991/icils-18.2018.18

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 Advances in Social Science, Education and Humanities Research, volume 192
1st International Conference on Indonesian Legal Studies (ICILS 2018)

The Rohingya Refugee Crisis: Legal Protection

on International Law and Islamic Law
M. Alvi Syahrin
Student at Doctoral Program of Law, Faculty of Law, Universitas Borobudur, Jakarta, Indonesia
Email: [Link]@[Link]

Abstract —The news relating to Myanmar Rohingya minority refugees attracted international attention, after hundreds of boatmen
fled Myanmar and were stranded in Aceh. According to the United Nations report until December 2017, the number of Rohingya
refugees reached 515,000. The number is increasing considering the conflict in Myanmar has not been resolved. In this article will
examine how the protection of Rohingya refugees in the perspective of international law and Islamic law. The research method used
in this paper is qualitative normative legal research method with deductive logical thinking. Based on research, it can conclude that
refugee protection under international law is regulated in the 1951 Convention and 1967 Protocol governing the principles and rights
and obligations of refugees. According to Islamic law refugee protection is contained in the QS. Al Hasyr: 9 which contains the
principles and rights of asylum seekers. Whether in international law or Islamic law, the principle applied to refugees is a non-
refoulment principle. This principle has become an international customary law so it must be implemented by all countries.

Keywords—Rohingya, Refugees, International Law, Islamic Law

I. INTRODUCTION Suppression of human rights. Search new country by

refugees of course should be regarded as a basic human right
The problem of refugees and displacement of people in the (Syahrin, 2016: 7).
country is the most complicated issue facing the world A refugee is a person who was forced to cut ties with
community today. Many discussions that take place in the his native country because of fear based and experiencing
United Nations that continue to seek more effective ways to oppression (persecution). The fear that this is what
protect and assist these particularly vulnerable groups distinguishes based refugee with other types of migrants, any
(Santoso, 2014: 4). A number of people calling for promised weighing the situation, and also of others who are in need of
increased cooperation and coordination between the humanitarian assistance. Refugees cannot rely on the
institutions of the giver of aid, others point to gaps in protection of the country that is supposed to give protection
international regulations and urge forward the standard in to them, then to respond to the sad situation faced by
this field further. However everyone agrees that this issue is refugees, special preparation must be made by the
a matter of multidimensional and globally. Thus any international community.
approach and the way out should be done comprehensively Every country has a general duty to provide
and explain all aspects of the issue of the causes of mass international protection as a liability which is based on
exodus to a response outlining the need for tackling the international law, including international human rights law
problem of refugees range from a State the emergency until and international custom law (Kusumaatmadja, 2013: 76).
their repatriation (Havid, 2004: 88). So the countries that became the participants of the
Currently, refugee protection is still a reason for the Convention of 1951 on the Status of Refugees and/or 1967
existence of the United Nations of High Commission for Protocol have obligations as stated in the legal devices that
Refugees (UNHCR). UNHCR had a responsibility to give are set in the 1951 (Syahrin, 2015: 20). In practice, many
protection to refugees (Betts, 2010: 210). Based on Global countries which then handle the refugees are not in
Trends 2011 report expressed by UNHCR on June 18, 2012, accordance with international standards that were already
showed 3.5 million people displaced from their homes but provided for in the Convention of 1951 and the 1967
remain inside the country. Officials of UNHCR, Antonio Protocol even violate the principle regarding the prohibition
Guterres said the world body was grateful for the of expulsion or return (non-refoulement) who has become an
international system that protects refugees served well and international customs law.
poultice-border remains open. According to the United Related to the protection of foreign nationals
Nations, by the end of 2011, there is 47.5 million as particularly the refugees, in addition to regulated in
refugees, displaced persons or asylum seekers. Afghanistan international law, Islamic law has long been set concerning
is the largest producer of refugees that is 2.7 million, the protection of human rights. Islamic law is affecting the
followed by Iraq, Somalia, Sudan and Congo (Syahrin, 2015: international refugee law setting. Islamic jurisprudence is
14). present to establish the principles of humanity, such as
In General, the evacuation was done due to the brotherhood, equality and tolerance. The granting of aid,
suppression of the rights of refugees in their countries. In guarantees of security and protection to those in need, until
General, they are also looking for land or other countries as to the enemy though, is the noble teachings of Islamic
his new residence which is certainly far from the jurisprudence, which preceded the present birth a number of

Copyright © 2018, the Authors. Published by Atlantis Press.

This is an open access article under the CC BY-NC license ([Link] 94
 Advances in Social Science, Education and Humanities Research, volume 192

modern international legal instruments on human rights and II. RESEARCH METHOD
refugees, which regulates, among other things, the right of
asylum and extradition ban on refugees. It's all in order to A. Method Approach
protect the safety of the soul of the person concerned and The formulation of the problem shows that the research
prevents it from persecution or murder (Abu Wafa’, 2011: is done by approach of normative juridicial approach, where
10) the normative jurisdiction is to examine a legal problem and
Islamic law set up in Article 12 of the Charter of the make the settlement through the applicable legislation.
Universal Declaration of Human Rights according to Islam
which States, "Everyone has the right, in the view of Islamic B. Research Spesifications
jurisprudence, travel and fled to another country ... in the The spesification of this study is descriptive analysis to
face of persecution". The destination country is obligated to provide an overview of the real facts along with an accurate
provide asylum to such persons so that he obtained a security analysis of laws and regulations that can be used as material
exception breakout driven by reasons and actions that are analysis related to abuse of dominant position.
seen by the Islamic jurisprudence as a crime.
Based on reports from UNHCR, stated that at the end
of the year 2015 the number of people who make the shift III. RESULT AND DISCUSSIONS
was forced to reach 65.3 million people, whereas in
previous years the number of records as much as 59.5 A. Legal Protection of Rohingya Refugees on International
million people. This is the first time 60 million limit Law
exceeded. There are some countries that are more Rohingya have occupied two towns in Northern
prominent, i.e. Syria with 4.9 million, with 2.7 million, Rakhine State, formerly known as the Western region of
Afghanistan and Somalia with 1.1 million, the three Arakan, Burma since the 7th century AD. Currently, there
countries together accounted for more than half of the are about 600,000 people Rohignya who lives in Myanmar.
refugees under UNHCR's mandate throughout the world. For years they got bad and discriminatory treatment from the
The majority of refugees are currently dominated by Government of Myanmar.
muslim countries. In addition also occurs in Bangladesh According to UNHCR, there are currently about twenty
and Myanmar. But unfortunately, the spirit of universal eight thousand Rohingya people living in refugee camps in
human rights protection turns out to be not his full can be Bangladesh. Ironically the muslim Rohingya ethnic not
feel by the muslims in the world. One of them is from the recognised by either Myanmar or Bangladesh as its citizens
country of Rohingya asylum seekers Myanmar. so that it can be said that Rohingya is stateless.
Preaching minority Rohingya refugee related tribes of Rohingya’s freedom severely curtailed, majority of
Myanmar to invite the attention of the international their citizenship are not recognized. They have not even
community, after hundreds of boat people fleeing from granted the right of ownership over the land and work on a
Myanmar and stranded in Aceh. They reveal the number of infrastructure development work in Myanmar.
mistreatment received during your stay in Thailand. In early Such discrimination has been forcing them to become a boat
January 2009, the Navy of Thailand Rohingya boat people people and leave myanmar to find safety and a better
has caught in the waters of the Andaman and then forced livelihood in other countries. The countries that becomne
about 1000 boat people back out to sea in boats without their destination and transit are Bangladesh, Malaysia,
engines and without supplies of water and food adequate Pakistan, Saudi Arabia, Thailand, Indonesia and Singapore.
(Rismayanti, 2009: 16). How is the status of Rohingya boat people? Tracing
The Muslim Rohingya is ethnic muslim who inhabit the sense above, they are people without a nationality
the country of Burma (Myanmar). In addition to the (stateless persons) and asylum seekers. But it is unclear
Rohingya Muslims, there are still some other muslim ethnic whether then a nation will give them status as a refugees or
group living in Myanmar. It was very unfortunate for not. There are some facts related Rohingya boat people.
muslim Rohingya were never included in the list of 137 First, Rohingya is not recognized as the people of Myanmar
ethnic recognized by the Government of Myanmar. The (stateless); Second, they experience discrimination and racist
absence of this recognition led to their have not citizenship. whether economic, social or political; and Third, the ethnic
The condition is not clear legally making the Government of Rohingya suffered various torture and human rights
Myanmar Rohingya Muslims are treated inhumanely. Most violations with given the minimal wage and without even
of the Rohingya Muslims get the ordeal of the military junta being given the wages in various infrastructure development
of Myanmar, even some of them have become victims of projects in Myanmar (Handayani, 2002: 158).
human trafficking. Weighing the exam they receive in the Rohingya has experienced a wide range of pressure and
country of his birth, forcing the muslim Rohingya to come its treatment discrimination as stated in Article 1 of the 1951
out of Myanmar and live as boat people (Allain, 2002: 538). Convention which mentions regarding the definition of a
Observe the legal events, then this article is meant to refugee is a person who is outside the country of origin or
explain about setting protection against refugees according residence, experiencing fear of prosecution due to race,
to international law and Islamic law as well as a form of religion, nationality, membership in a particular social group
protection against the Rohingya boat people according to or have a different political view, and has no nationality and
law international and Islamic law. unable or unwilling to obtain protection from their country
due to these fears. Based on the provisions of the
Convention, the Rohingya boat people entitled to refugee

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status. The right to seek asylum contains notions that people fleeing
The refugees became an international problem. The from persecution and to enter the territory of another country
protection arrangement of refugees is a general principle of without bringing a complete document must be given
human rights (Syahrin, 2015: 11). According to Article 14 of permission entry to a country, at least for a temporary period
the Charter of the Universal Declaration of Human Rights, of time (Syahrin, 2014: 25). Every asylum seeker have the
"Everyone has the right to seek and to enjoy asylum in other right not to be expelled or forcibly returned when they had
countries to protect him from persecution/torture. The 1951 arrived in a country with an uncommon way. This is known
Convention as a regulation that protects and provides as the principle of non-refoulement (Syahrin, 2018: 43-57).
assistance on refugees. There are some protection which is The non-refoulment principle should be distinguished from
given by the convention (Suwardi, 2004: 35). expulsion or deportation or expulsion. The deportation is
First, there is no discrimination. States parties to the carried out if foreign nationals do actions that are against the
convention should not be treated as refugees based on good law in the country of the recipient or it is the offender who
political discrimination with regard to race, religion or escaped from court proceedings, whereas the non-refoulment
country of origin or skin color and they have the freedom to principle used only against refugees or asylum seekers
exercise their religion (Article 3 and 4). (Riyanto, 2010: 697).
Second, the personal status of the refugees is governed Article 33 (1) of the 1951 Convention states that the
according to the laws where they are domiciled. If they do state parties to this convention are not allowed to expel or
not have their personal status, domicile is governed by the return a refugee in any form outside the territory where their
law in which they are placed (place of residence). Rights safety and freedom threatened for reasons of race, religion,
relating to marriage should also be recognized by the nationality, membership in a social group or political
signatories and of the Protocol (Article 12). Third, a refugee opinion.
has the same rights in regard to property rights or have had a The non-refoulment principle is not only found in the
good move or not move and save it as much as others and 1951 Convention, but also listed implicitly or explicitly on
can also be transfer their assetto the country where he will Article 3 Against Torture Convention, Article 45 paragraphs
settle (Article 13, 14 and 30). Fourth, signatories should 4 IV Geneva Convention, Article 13 International Covenant
recognize the freedom of refugees to associated with setting on Civil and Political Rights and other human rights
up the Assembly including a bevy of trade along the instruments. This principle has been recognized as part of
Assembly it is non-profit and non-political (Article 15). The international customs. In a sense, the country has yet to
provisions ini is the right of Assembly. Fifth, a refugee become a party to the 1951 Convention have to respect the
would have had the freedom to litigants in front of the non-refoulment principle (Syahrin, 2017: 168-178).
judiciary (Article 16). Sixth, reserves the right to get a job Both Myanmar, Thailand, and Indonesia have not yet
and set up a trading company and other free work, where this become states parties (state parties) of the 1951 Convention.
free work must comply with the provisions that have been However those countries unable to relinquish his
recognized, such as signs the certificate, the point is to know responsibilities for granted against Rohingya. The Thailand
expertise to be placed on a suitable job (Article 17, 18 and Government actions who catch and throw Rohingya has
19). Seventh, each refugee will receive equal treatment with violated the provisions of the convention.
the nationals of the other over the right of acquiring Myanmar as the country of origin is the most
education primary school (Article 22). Eighth, each of the responsible for dozens of years of Rohingya. Myanmar also
refugees will be able to enjoy the right to social welfare, let the occurrence of torture and discrimination against them
such as the rights to work, housing, getting wages from a on the basis of ethnic and religion (persecution). The things
work that their does (Article 20 and 22). This is an which can be classified as a crime of the state.
entitlement to social welfare. Ninth, each refugee is entitled Thailand and Indonesia were responsible for not
to letters and identity travel document to outside of the immediately expelled and forcibly return them (non-
territory of the country where he placed except for reasons of refoulement) when the origin of the Rohingya stranded or
security and public interest. The travel documents issued on arrive in the territory of its sovereignty through the
international agreements will be recognized by the unorthodox way. The best way is to accommodate them
signatories (Article 27 and 28). temporarily while determining the next process, whether to
Apart from the rights of refugees who named the above give asylum straight, forward to another country, or return to
program, the convention sets out obligations has also been the country of origin when conditions are indeed possible
stated in Article 2 of the Convention: (Nasution, 2016: 12).
“Every refugee has duties to the country in which he The decision of Indonesia Government hold while
finds himself, which require in particular that he conform to Rohingya asylum seekers are things that should be done
its laws and regulations as well as to measures taken for the from the side of international law. The Indonesia
maintenance of public order.” Government indeed may not give the status of refugees
Based on Article 2, each refugee is obliged to comply (refugee) to them because it considers them coming because
with all applicable laws and regulations for creating public economic motives, but not necessarily be cast out and give
order in the country in which he is placed. temporary shelter is they should have been carried out
Based on Article 14 (1) of the Universal Declaration of according the non-refoulement principle in the 1951
Human Rights 1948, everyone has the right to seek and to Convention.
enjoy asylum from other countries because of fear of torture.

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B. Legal Protection of Rohingya Refugees on Islamic Law further, in the territories that are subject to the Islamic
1. Human Rights Protection on Islam countries (such as the diplomatic mission places or
Refugee protection is related to the protection of warships).
human rights ingGeneral. In Islam there are two words that The jurisprudence also recognizes asylum/protection
are often translated as Islamic law i.e. Sharia and fiqh. Sharia provided in other countries, and is in line with the
is the word of Allah and the Sunnah. So the main sources of application of the principle of jurisdiction the territorial
the Qur'an and the sharia is Sunnah. While fiqh is ijtihad a principle of jurisdiction and a non-Islamic country's
human over sharia law which consists of the Qur'an and territorial expansion into territory that is not part of the
Sunnah (Hasanah, 2010: 718). Islamic state. Second, there are a motive for acquiring
Human rights in Islam, not only recognized but is fully asylum and in the eyes of Islam, all the motives that are
protected as one of the pillars of Islamic buildings. This equivalent.
principle has outlined in the Qur'an, among others, in Al-Isra
verse 70: 2. The Asylum Acquiring Principles in the Qur'an
“And indeed We exalt the sons of Adam, we carried Q.S. Al-Hashr: 9 setting the five main principles of
them on land and in the ocean, we give them a asylum and treatment of refugees. Allah state that:
sustenance from the good things and we debate them
with the advantages of most creatures that we have “And people who have short-lived in the city of Medina and
created.” believe (ansâr) before (the coming of) their (muhâjirîn), (ansâr)
The verse expressed human glories in the text of the loving people who migrated to them (muhâjirîn). And they (ansâr)
Qur'an called the karamah (glory). Mohammad Hasbi Ash there is no put the desire in their hearts against anything given to
them (muhâjirîn); and they give priority to (people of emigrants),
Shiddieqy karamah divides into three categorizes. First, upon themselves.”
personal glory or karomah fardiyah; second, the glory of the
society or karomah ijtimaiyah; and third, glory or political From this verse clearly visible a few principles. First, a
karomah siyasiyah. In the first category, human beings are muslim should be pleased and excited to welcome refugees
protected both personal as well as his wealth. In the second (or immigrants from a region to another region) and get
category "status is fully guaranteed the human equation" and along well with them. Allah state that:
in the third category, Islam fully guarantees political rights
of his people. "... they (ansâr) loving people who migrated to them
On the date of August 5, 1990, Islamic countries (muhâjirîn) ...". Therefore, the asylum seekers should not be
grouped in the Organization of the Islamic Conference expelled to the outside boundary of the territory of the Islamic state
produce a humanitarian declaration according to the Islamic or a rejected return.”
law based on the Qur'an and Sunnah. The Declaration called
the Cairo Declaration consists of 25 chapters. The Second, muslims should treat them well, and to
Declaration state that all rights and freedom are subject to prioritize the interests/needs of their lives. This is evident
Sharia or Islamic law. These rights include: the right to life from Allah, "... and they give priority to (people of
(QS. Al-Isra: 33, Al-An'aam: 151); the right to equality and emigrants), on behalf of themselves ...". The meaning of al-
status by (QS Al Baqara: 286); freedom of expression (QS. îtsâr is more emphasis on others instead of himself about the
At-Tawba: 71); the right of freedom of religion (QS. Al- needs/interests of the mundane foolishness and wants the
Baqara: 256); property rights (QS. Al-Baqara: 188, An- ukhrawi advantage. This attitude was born from a strong
Nisaa: 29); rights get justice (QS. Ash-Shu’araa Council: confident stance, the love of Allah, and patience against the
15); rights to get the basic necessities of human life (QS. difficulties. Such is the case, because other people prefer the
Adz-Dzariyat: 19); and get an education (QS. Yunus: 101). attitude in the Affairs of life are above other people prefer
With regard to asylum seekers, in order to be granted the attitude in the affairs of property even if the return to the
asylum in accordance with the provisions of the Islamic Affairs of life as well.
shari'a then must be met some of the requirements. First, the Third, sympathetic acceptance against the refugees,
asylum seekers are in Islamic countries or in regions that are whether rich or poor. This is evident from Allah:
subject to the Islamic state. This makes sense, because to be
given asylum by an Islamic country, asylum seekers must "And they (ansâr) there is no put the desire in their hearts
reside in the territory of the Islamic state that. The term against anything given to them (muhâjirîn) ...".
"Islamic countries" includes areas where sharia is applied,
Thus, whether the refugees were rich or poor people
and the people who inhabit it, whether muslim, non-muslim
don't have any influence, since this problem only with regard
(dzimmiy) to any other person, is under the protection of
to protective measures and guarantees the security and
Islam and be protected on the basis of the teachings of Islam.
welfare of refugees in the area of self against/destination
In this regard, Abu Hanîfah suggests three (3) terms of what
countries.
is known as the Islamic state (Dâr al-Islâm), that the rules
Fourth, there is not to refusing even the inhabitants of
are enforced sourced from Islamic jurisprudence; countries
the immigrant/migration destination country the immigrant
that were neighbours with other Islamic countries; and its
was middle of crisis, poverty and increased living needs.
inhabitants, whether muslim or non-muslim, are protected on
This is evident from Allah, "even if they're in trouble ...", i.e.
the basis of the teachings of Islam. So is the case, the
the poverty the urgent necessities of life or at least treasures.
asylum/protection can be provided, as we will discuss
Fifth, this verse also proves the existence of a territorial

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asylum, this is reflected in the verse, "and the people who Then this case has broken at least three of the five purposes
have lived in the city of Medina and believe (ansâr) before of the Islamic jurisprudence.
(the coming of) their (muhâjirîn) ...". That is to say, those Human rights in Islam is not only recognized, but is
who live in the country and make it as the ground of their fully protected as one of the pillars of Islamic buildings. This
residence. This shows that the population of dae-rah/region principle is expressly outlined in the Qur'an, among others,
mandatory migration destinations receive the arrival of in surah Al Isra verse 70:
immigrants to the region/country of them.
The condition of the Rohingya immediately invites
attention to a lot of parties, from the Islamic world. This can "And indeed We exalt the sons of Adam, we carried them on
be understandably, because Islam is a system of perfect life land and at sea, We give them a sustenance from the good things
and thorough. Islam covers all aspects of life, so that Islam and we debate them with the advantages of most creatures that we
also give attention to the protection of human rights and have created."
uphold the principle of the equation. Acts of persecution that
That verse expressed human glories in the text of the
has been conducted against the Rohingya are clearly not
Qur'an called the karamah (glory). Mohammad Hasbi Ash
justifiable and contrary to Islamic teachings. The fate of the
Shiddieqy divides karamah into three categorizes i.e.
Rohingya demanded the sympathy of muslims in the world,
personal glory or karomah fardiyah; the glory of the society
especially in Indonesia.
or karomah ijtimaiyah; and glory or political karomah
There are at least four main reasons that can be used as a
siyasiyah. In the first category, human beings are protected
foothold for muslims to treat Rohingya.
both personal as well as his wealth. In the second category
First, the Islamic ummah solidarity. One of the main
status is fully guaranteed the human equation and in the third
principle in Islam is the principle building ukhuwah /
category, Islam fully guarantees political rights of his
fraternity. Allah said in surat Al-Hujarat verse 13:
people.
"O man, verily, We created you from a male and a female, and
In the case of the Rohingya, personal glory as a man
made you from various nations that you may know each. Verily, the who becomes independent has been omitted by the existence
most glorious of you is the most Allah-fearing among you. Verily, of torture and human trafficking. Glory as a human entity in
Allâh is all-Knowing Supreme again to know. " a tribe, ethnic group, or any name that has the right to do is
treated equally before the law has been violated. Not the
Based on the above, it can be taken a lesson that the presence of the Rohingya ethnic recognition of the cause
relationship between people is basically peace. This they have no citizenship had violated the doctrine of human
paragraph also explains a few other things, namely: (a) the rights related to civil and political rights, which of course
origin of mankind is one. It is similar with the previous everyone in the world has the right to have citizenship.
paragraph which states that every muslim is brothers; (b) Recognition of the Islamic human rights which so
Allah made humans from various nations in order to know dominant was also poured into some of the conventions and
each other with a view to mutually agreed upon as a basis in international treaties in the world, one of them in the Cairo
the relationship between individuals and groups; (c) Declaration on Human Rights in Islam 1990. Article 1 state
determine the size of a human quality, i.e. committed; (d) that:
comprehensive statements in this paragraph to all mankind,
not only to those who believe. “All human beings form one family whose members are united
This verse has called for the people to safeguard world by submission to Allah and descent from Adam. All men are equal
peace in general. Abuse and torture against one specific in terms of basic human dignity and basic obligations and
ethnicity obviously contrary to this clause, especially if it responsibilities, without any discrimination on the grounds of race,
colour, language, sex, religious belief, political affiliation, social
turns out that people who are persecuted are those muslims status or other considerations. True faith is the guarantee for
who are cautious. Whereas those who believe it is the enhancing such dignity along the path to human perfection.”
brothers and defense of fellow muslims is a thing worth
fighting as the complete faith of the muslims. In addition, based on the Q.S. Al-Hashr: 9 set five main
Second, Maqasid Al Shariah Khamsah. Accodring to principles of asylum and related grammar handling/treatment
the Ash Syatibi, everything in the world is definitely has a of refugees. Allah said that:
purpose, as well as with the Islamic jurisprudence. This “And people who have short-lived in the city of Medina
theory is commonly referred to with the Maqasid Al Shariah and believe (ansâr) before (the coming of) their (muhâjirîn),
Khamsah or five purposes of Islamic law. The fifth objective (ansâr) loving people who migrated to them (muhâjirîn).
of this jurisprudence are: protection against religion, soul, And they (ansâr) there is no wanting in their hearts against
intellect, lineage and property. In the case of the Rohingya, anything given to them (muhâjirîn); and they give priority to
the treatment of Milter junta Myanmar and Thailand (people of emigrants), upon themselves, though they also
Governments was opposed to the Maqasid Sharia. The entire memer-badly.”
primary human needs protection to survive has been From this verse clearly visible the principles below.
violated. Protection of religion could not be felt by First, the muslims should be pleased and excited to welcome
Rohingya. According to the information in several media, refugees (or immigrants from a region to another region) and
Myanmar's military Junta has tortured Rohingya who get along well with them. Therefore, the asylum seekers
ultimately forced them to get out of the place itself. The should not be expelled to the outside boundary of the
Rohingya live in the boat away from the life he deserves. territory of the Islamic State or a rejected return. Second, the

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muslims should treat them well, and prioritize the [9] Rismayanti, Irma D. (2009). Manusia Perahu Rohingya:
interests/needs of their lives. Third, sympathetic acceptance Tantangan Penegakan HAM di ASEAN. Opinio Juris, 16
against the refugees, whether rich or poor. Fourth, there is no [10] Riyanto, Sigit. (2010). The Refoulement Principle and Its
rejected immigrants though inhabitants of the migrants Relevance in the International Law System. Jurnal Hukum
Internasional, 697.
destination. Fifth, the existence of territorial asylum that is [11] Santoso, M. Iman. (2014). Perspektif Imigrasi dalam
those living in the country and make it as the ground of their Migrasi Manusia. Pustaka Reka Cipta.
residence. This shows that the population of the area/region [12] Suwardi, Sri Setianingsih. (2004). Aspek Hukum Masalah
mandatory migration destinations receive the arrival of Pengungsi Internasional. Jurnal Hukum Internasional, 35.
immigrants to their countries. [13] Syahrin, M. A. (2017). The Implementation of Non-
As a country which has a muslim majority population, Refoulement Principle to the Asylum Seekers and Refugees
Indonesia muslim should respects the principles set forth in in Indonesia. Sriwijaya Law Review, 1(2), 168-178.
the Holy Quran and international conventions. Thus, [14] Syahrin, M. A. (2018). Menakar Kedaulatan Negara dalam
Indonesia muslim already treats Rohingya who were Perspektif Keimigrasian. Jurnal Penelitian Hukum De
Jure, 18(1), 43-57.
stranded in the waters of Aceh as well as respect for the [15] Syahrin, M. Alvi. (2014). Penyadapan oleh Australia,
protection of human rights according to international law Sebaiknya Imigrasi Bersikap. Bhumi Pura Magazine.
and Islamic law. Directorate General of Immigration.
[16] Syahrin, M. Alvi. (2015). Imigran Ilegal, Migrasi atau
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The protection of Rohingyas according to international law [18] Syahrin, M. Alvi. (2016) Eksodus Warga Negara Tiongkok:
is provided for in Article 33 (1) of the Convention on Antara Kebijakan dan Penyelundupan. Check Point
Refugee Status 1951 states that States Parties to the present Magazine. Academy of Immigration.
Convention shall not be allowed to evict or return refugees [19] The 1948 Universal Declaration of Human Rights
of any kind outside their territory where their safety and [20] The 1990 Cairo Declaration of Human Rights
freedom are threatened for reasons of race, religion , [21] The 1951 Refugee Convention
nationality, membership of a social group or a particular [22] The 1967 Refugee Protocol
political opinion. The principle of non-refoulement is
binding not only to the state party to the convention but also
to all countries in the world. Then, the protection of spiritual
refugees according to Islamic law is regulated in Q.S. Al-
Hasyr: 9. The verse of the Qur'an contains the following
principle. First, Muslims should be happy and happy to
welcome refugees (or immigrants from one area to another).
Second, Muslims should treat them well. Third, accept the
presence of refugees in bai. Fourth, the ban refused
immigrants even though the migration destination of
immigrants was in crisis. Fifth, the existence of territorial
asylum.

V. REFERENCES

[1] Abu Wafa’, Ahmad. (2011). Hak Pencarian Suaka dalam

Syariat Islam dan Hukum Internasional (Suatu kajian
Perbandingan). Translated by Dr. Asmawi dkk. UNHCR.
[2] Allain, Jean. (2002). The Jus Cogens Nature of Non
Refoulment, International Journal of Refugee Law, 538.
[3] Betts, Alexander. (2010). Towards a soft Law Framework for
the Protection of Vunarable Irregular Migrants. International
Journal of Refugee Law, 210.
[4] Handayani, Irawati. (2002). Perlindungan terhadap Pengungsi
Domestik (Internally Displaced Persons) dalam Sengketa
Bersenjata Internal Menurut Hukum Internasional. Jurnal
Hukum InternasionaI, 158.
[5] Hasanah, Uswatun. (2010). Human Rights in The Perspective
of Islamic Law. Jurnal Hukum Internasional, 718.
[6] Havid, Ajat Sudrajat. (2004). Pengungsi dalam Kerangka
Kebijakan Keimigrasian Indonesia Kini dan yang akan
Datang”. Jurnal Hukum Internasional, 88.
[7] Kusumaatmadja, Mochtar dan Etty R. Agoes. (2013).
Pengantar Hukum Internasional. Alumni.
[8] Nasution, M. Arif. (2016). Globalisasi dan Migrasi Antar
Negara. Alumni.

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