Mainstream Independent Scholarship

2A Yrsufed-Qarad i

Arguably, no contemporary scholar has gained as much fame and stirred as much controversy as Yrsuf al-Qaraawr. In the past decade, al-Qaraawr has moved from being a voluntary exile in Qatar to leading the prayer in Tahrir Square after the 25 January 2011 uprising to being a ITgitive against whom a number of sentences have been issued since 30 June 2013.

Losing his father at the age of two, al-Qara awf was brought up by his mother and financially supported by his paternal uncle.123 A prominent stu­dent with a promising future, he enrolled at al-Azhar despite his uncle's reluc­tance. He joined the Muslim Brotherhood during his student years. According to him, the founder of the Brotherhood, Hasan al-Banna (d. 1949), was differ­ent from his teachers, who were traditional employees primarily interested in their salaries.124 Al-Banna left a long-lasting impression on al-Qaaawi, an impression that shaped his academic and political career. Al-Qaradawi was ar­rested twice because of his membership in the Brotherhood. The first time was shortly after the assassination of the then prime minister al-Nuqrashi and the

121 A⅛mad Malmud Karima, ''NadharSt fi fitnat al-takfir wauwar li-takfir al-muslimin,” in al-Majlis al-'Ala li-l-Shuun al-Islamiyya Twenty Third Conference, ''Khutrat al-fikr al- takfiri wa-l-fatwa bidun 'ilm.” Cairo, 25-22 Mar, 2014 (Cairo: Matabi' al-Ahram, 2014), 89.

122 “French Visa Ban Blow to Al Qaradawi,” Gulf News (27 March 2012), online:,ac- cessed 3 May 2018.

123 al-Qaradawi website, “Hawl al-Qaradawi: Mudhakirat al-Qaradawi,” online:, accessed 10 June 2011.

124 “Hawl al-Qaradawi.”

ensuing dissolution of the organization in December 1948.125 After his release, al-Qaraawr enrolled at the faculty of Ushl al-Din at al-Azhar and graduated to work as a faculty member there. He claims to have campaigned actively for reforms of al-Azhar and to have drafted a short memorandum detailing his vi­sion for such reform, but his efforts were halted by his second and third arrests in 1954 on account of the Brotherhood's alleged attempt to assassinate Nasir.126

After facing some difficulties, al-Qaraawr managed to pursue postgraduate studies at al-Azhar University in Quranic and hadlth studies, but his history of activism meant he was denied employment as a teacher at any of al-Azhar's institutes.127 He managed to secure a job as a teacher in a private school in Cairo, until he moved to the Ministry of Awqaf (endowments) in an adminis- trativejob. He enjoyed a strong relationship with Shalffit (d. 1963), who had become the Grand Shaykh of al-Azhar (1958-1963). Al-Qaradawi asked to be transferred to al-Azhar, where he was assigned the task of editing and compil­ing Shalffifs writings. Later, he was commissioned to work on his famous book, al-Halalwa-l-hardmfiL-Islam (“The permissible and the prohibited in Islam”), directed at a European and U.S. audience.128 He was then seconded by al-Azhar to the Qatari government, but his secondment was delayed for security rea­sons.

The move to Qatar signalled a new, concrete step towards al-Qaradawi be­coming an embodiment of the phenomenon of an “international ⅛li'm. ”129 The most significant point in his career as a global Sunni Hgure came with the es­tablishment of al-Jazeera Satellite TV channel, based in Qatar. The channel sig­nificantly widened his appeal, making his program, al-SharUa wa-l-hayd, a flagship program.

125 “Hawl al-Qarawi.”

126 “Hawl al-Qarawi.”

127 “Hawl al-Qarawi.”

128 “Hawl al-Qarawi.”

129 Skovgaard-Peterson, “al-Qarawi and al-Azhar,” 37.

130 Ehab Galal, “Yusuf al-Qarawi and the New Islamic TV,” in Graf and Skovgaard-Peterson, eds., GkaMuftt,r62..

and was able to manage courteously his relationship with the Brotherhood in a manner that ensured his independence and appeal to a wider audience.131

It should also be noted that al-Qaraawr was invited in 2008 tojoin the Academy by the late Grand Shaykh of al-Azhar, Tantawi. Al-Qaradawi, who had been a critic of the Academy, accepted the invitation and participated in its thirteenth conference. However, when the Academy issued afatwa condoning the building of a controversial wall along the Egyptian-Israeli border, al- Qaradawr condemned thefatwa and did not attend the 2009 conference.132 Af­ter the 2011 revolution and upon the reinstatement of the ESA by virtue of the law issued by SCAF in 2012, he was also appointed as a member of the author­ity. Upon the removal of Mursi from power by the military in 2013 and the ensu­ing attack on protesters against the coup, al-Qaradawr resigned from the authority and the Academy.133 It is worth noting, however, that while al- Qaradawr had supported protests against Mubarak,134 he strongly condemned popular protests against Mursr despite his strong support for protests against Mubarak,

2.2 al-Qaradawl and Usul al-Fiqh

On more than one occasion, al-Qaradawr has emphasized the authority of the Qur'an and sunna as the primary sources of jurisprudence.

131 Husam Tammam, “Yusuf Qaradawr and the Muslim Brothers,” in Graf and Skovgaard- Petersot^s., GlobalMuftIA.

132 'AmrJad, "FatYusufal-Qaradawi bi tahrrm aljidar al-fuladhr tuhadid bi inha 'udwryatuh fr Majma' al-Bulth al-Islamiyya,” al-Yawm al-Sabr (25January 2009), online:, accessed 10 June 2011.

133 Qaradawr website, "Istiqalat al-Shaykh al-Qaradawl min Majma' al-Bulth al-Islamiy- ya” (21 December 2013), online:, accessed 2 May 2017.

134 Muhammad Qasim Zaman, Modern Islamic Thought in a Radical Age (Cambridge: Cam­bridge University Press, 2012), 267. Although it is not directly relevant to the subject matter of this book, it is also noteworthy that al-Qaradawr took a strong position against protests in Bahrain in 2011, accusing the movement of sectarian interests. See CNN bi-l- 'Arabiyya, “al-Qaradawr: Thawrat al-Bahrayn madhhabrya tastahdif al-sunna” (7 February 2013), online:, accessed 2 May 2017.

135 corleonecorleone2003 (Youtube-username), “al-Qaradawr: al-Khuruj 'ala Mursr haram,” Youtube video, 10:28, filmed June 2013, posted June 2013, online:, accessed 1 May 2017. significant outcomes if used by a good mujtahid.136 Knowledge of the Qur'an and the sunna entails knowledge of Arabic, of the occasions of revelation the texts, and abrogation rules.137 But al-Qaraawi is sceptical of expanding abro­gation, arguing that it is unreasonable to claim that “the verse of the sword abrogated more than one hundred verses of the Qur'n.''138 He also states that one should be cautious of earlier claims of abrogation because the term was initially used expansively to include any limitation or specification of a text by another text.139 He acknowledges the authoritativeness of Ijmff but argues that it is often excessively claimed and that a new jmff could replace an older one.140 Finally, he argues that a jurist should take into consideration the maqffsid al- sharTa (the objectives of the sharΓff) because no legal rule can ever contradict the general principles of the legal system.141

2.3 Wa,hba,ad-Zu⅛ctyfi

This section looks at another scholar who dedicated significant focus to the regulation of armed conflict in Islamic law, Wahba al-Zuhayli.

r¾6 Yrsui ai-Qaradawr, a--!tihad fl allslamiya i√^cι' a rd thia fl Hjtihad at

muffsir (Kuwait: Dar al-Qalam, 1996), 19.

1¾7 AQaradffwy Ijtihad,¾2--35.

138 Yusuf al-Qaradawi, Fiqh al-jihad (Cairo: Maktabat Wahba, 2009), 21

139 al-Qaradawi,jihad, 21.

140 al-Qaradawi, Ijtihad, 37-33.

ÃÀÃ Oi-QaradffwY Ijtihad, AA.

142 Wahba al-Zuhayli website, “Sira ?atiya,” online:, accessed 12 June 2011.

143 Wahbeh al-Zuhili, “Islam and International Law,” International Review ofthe Red Cross 87, no. 858 (2005), 269-283.

144 Wahba al-Zuhayli, Athar al-harbfll-fiqh al-Isffml, 3rd ed. (Damascus: Dar al-Fikr, 1981).

2.4 al-Zuhayli and Usul al-Fiqh

Al-Zuhayli states that scholars agree on the authoritativeness of the Qur'an, sunna, Ijmd^c, and qiyds and that those sources must be adhered to in the order given.45؛ He argues that any act condoned in the Qur'an is either obligated or recommended, any act denounced in its verses is either prohibited or disap­proved, and any act allowed is simply allowed.146 The third source, ijmd^c, is ijmd^c of scholars of a particular era; public opinion is irrelevant.

2.5 Featesof al-Qaradawιaad,al-2Λ∣⅛aylsApproach.toA ed.

CJlict

2.5.1 Direct Interpretation of the Qur'an and Sunna

One of the primary features of al-Zuhayls and al-Qaraawis works is that they do not shy away from ijtihad. This approach is classified by Nafi as salafi re­formism because “this current of Salafism calls for ijtihad, emphasizes the role of reason, and is influenced by the idea of progress.''155 Al-Qaradawf is indeed keen on promoting ijtihad and is critical of those attempting to limit its appli­cation in modern times: “It is an exaggeration and a negligence of reality to claim that old books have an answer to every new question.''i56 Al-Zuhayli is equally critical of blind allegiance to classical jurisprudence, arguing that such jurisprudence addressed the issue ofjihad in accordance with the era in which it was written.157 He argues, for example, that the objective of jihad is to fight aggression by others and reach peace agreements with other nations. To prove the defensive nature ofjihad, he takes the example of a hadlth such as:

I have been commanded that I should fight against people till they de­clare that there is no god but Allah, and when they profess it that there is no god but Allah, their blood and riches are guaranteed protection on my behalf exceptwhere it isjustified by law, and their affairs restwith Allah.158

He argues that this hadlth is specific to Arab infidels who were committed to fighting Islam and that because non-Arabs are allowed to payjizya, a common practice at the time, then the hadlth can only apply to Arabs whose aggres­sion is established.i59 Accordingly, the hadlth cannot be used as proof that all those who are capable of fighting may be targeted regardless of whether they participate in fighting. Al-Qaradawi also endorses this interpretation when addressing this hadlth.160 Again, the Quranic verse “When the [four] forbid­den months are over, wherever you encounter the idolaters, kill them, seize them, besiege them, wait for them at every lookout post”i6i is examined by both scholars within its context to prove it is related to aggressive infidels. Al-Zuhayli

155 Basheer M. Nafi, “Fatwa and War: On the Allegiance of the American Muslim Soldiers in the Aftermath of September 11,” Islamic Law and Society 11, no. 1 (2004), 102.

156 al-Qaradawi, Ijtihad, 101.

157 al-Zulayli, Athar, 194.

158 SaMusIm, 2ة:ا.

159 al-Zulayli, Athar, 121-22.

160 Yusuf al-Qaradawi, Fiqh al-jihad (Cairo: Maktabat Wahba, 2009), 1:330.

161 Q 9:5.

argues that the verse relates to infidels who breached their agreement with the Prophet and were ready to fight him.162 He also argues that the verse should be read in conjunction with other Quranic verses instructing Muslims to re­frain from aggression.163 Parallel reading would support his contextual read­ing of the verse and affirm that non-aggression is a general principle in the Qur'an. Al-Qaradawi also states that the verse should be read in the context of the whole chapter, “al-Tawba," which he argues is revealed in the context of pagans who breached their pacts with the Prophet and is thus limited specific to them.164

2.5.2 Position on Classical Jurisprudence

Unlike most scholars who deal with the issue of armed conflict, both scholars are bold enough to acknowledge existing juristic arguments that contradict their promoted positions. They both acknowledge, for example, that most clas­sical scholarship permitted the killing of captives, and they offer a detailed examination of the evidence relied on by classical scholars to support this po­sition. Also, they reject classical positions that claim that Q 47:4 (stating that once captives are defeated, a bond needs to be kept on them; in other words, they should be kept alive) was abrogated. They both claim that incidents of killing captives by the Prophet were specific incidents rather than indications of general rules of law.165 In light of his arguments that the Qur'an never al­lowed killing captives, al-Qaradawi also argues that international agreements regarding prisoners are now binding on Muslims, prohibiting attacks against their lives.166

The two scholars' innovation with regard to the legal tradition is not, how­ever, always made evident in their writings. Al-Qaradawi, for example, disa­grees with al-Shafir willingness to use mangonels and other indiscriminate weapons against those who are hiding in a fortress, regardless of the presence of women, children, and monks. He argues that such tactics may only be re­sorted to in case of military necessity. In order to reffite al-Shafi'i, he relies on other scholars who disagree with him and quotes Ibn Rushd (alHfid) in Bidayat al-mujtahid listing the different jurists disagreeing with al-Shafi'i. 167 However, al-Qaradawi still offers a somehow sanitized image of thejuristic

162 al-Zlayli, Athar, 117-118.

163 al-Z 1 ayli, Athar, 117-118.

164 al-Qaradawi, Jihad, 1:284-85.

165 al-Z 1 ayli, Athar, 433-37, and al-Qaradawi,Jihad, 2:842-47.

166 al-Qaradawi,Jihad, 2:851.

167 al-Qaradawi, Jihad, 1:594.

position in his resort to such tactics, giving the impression that al-Shafi'i adopt­ed a solitary, strict position on targeting fortified locations. But if one were to consult Ibn Rushd (aHfid)'s work relied upon by al-Qaradawi, we find that he said that the majority of jurists agreed on using mangonels regardless of the presence of women and children.168

Al-Zuhayli is also relatively willing to admit the existence of jurisprudential authority contradicting his arguments. When addressing the issue of targeting, he acknowledges that al-Shafi'i and the Zahiris accepted killing those who do not fight, but he argues that most scholars did not accept the killing of a non-combatant. Here, he relies on the complexity of the term muqatil in the jurisprudential tradition. Although the term is now used to refer to a fighter, it was commonly used by jurists to refer to able adult men or, more precisely, to men who were willing to or capable of fighting, regardless of whether they in fact fought. Ibn Rushd (alHfid) states that some jurists prohibited the killing of those incapable of or unprepared for fighting rather than those who do not fight: “Those who claimed the ^cilla was the ability to fight because of the prohi­bition of killing women despite their infidelity excluded those who could not fight or who were not prepared tofight such as the farmer and hired labour.”69؛

Of course, one could build on the opinions of those limiting targeting to those categories of people prepared or able to fight and develop a targeting regime that protects non-combatants by arguing that most modern-day civil­ians are neither capable nor willing to participate in fighting once war breaks out. But al-Zuhayli is not willing to acknowledge his relative innovation in the field and is keener on proving Islamic jurisprudence's reluctance to allow the targeting of those who do not participate in the fighting. His approach results in the familiar modern approach that pretends to be loyal to the tradition with­out actually adhering to it.

2.5.3 Engagement with Militant Thought

Al-Zuhayli's book does not really address militant arguments, and it cannot be expected to do so, because the first edition of the book was published in the 1960s (i.e., before the surge in Islamist militant operations and thought). But al-Qaradawi makes some attempts to address the primary jihadist arguments. Although his approach to militant arguments is rather brief in comparison to jihadist revisionist works,؛™ it is more willing than most mainstream scholar­ship to engage with such arguments. This willingness is indeed an outcome of

168 Ibn Rushd (alHafid), Bidayat, 2:148.

169 Ibn Rushd (alHafid), Bidayat, 2:148 (my italics).

170 See Chapter 4. familiarity with militant thought by virtue of his involvement with the Broth­erhood. Although the Brotherhood is not a militant organization and contin­ues to renounce militant tactics, its key figure, Sayyid Qutb, is perceived as an inspirational militant figure. Al-Qaradawi also seems to enjoy some level of legitimacy within some conservative fundamentalist circles, possibly as an outcome of his bold fatwas, like the one on suicide bombing examined later,؛?؛ and as evidenced by his mediation with the Taliban over the preservation of Buddhist monuments.72؛

Al-Qaradawi argues that illegitimate governments are acknowledged by ju­rists as long as they successfully come to power. He then delves into the pri­mary argument relied on by militant groups to justify their campaigns in Muslim territories: apostasy of the regime.73؛ Militant groups argue that most modern Muslim regimes are apostates and must be fought. They believe that casualties inflicted upon civilians in the course of their conflict with the re­gime are justified either on the basis of the apostasy of the subjects or on the basis of tatarus (lit. shielding,jurisprudentially referring to the targeting of non-Muslims shielded by untargetable categories, including Muslims, women, and children). Al-Qaradawi argues that it is very difficult to establish the apos­tasy of those regimes because very few of them “boast their enmity to Allah's shartJa, permitting what Allah prohibited, prohibiting what Allah permitted, disregarding what Allah obliged [upon us] and not following the path of believers.”74؛ He also argues that those rulers maintain Islam as the religion of the state and lists numerous juristic opinions and traditions that call upon Muslims to refrain from unfounded accusations of apostasy.75؛ But al-Qaradawi does not address the traditions and juristic opinions heavily relied on by mili­tant ideologues to support their claims of apostasy and the legitimacy of their actions on that basis. While he selectively relies on Ibn Taymiyya to prove the defensive nature of jihad, he does not attempt to examine Ibn Taymiyya's thought, despite Ibn Taymiyya's relevance as the primary jurist relied on by militants in their claims of apostasy, as he admits. He simply argues that Ibn Taymiyya's fatawa envisioned the fighting of apostate regimes by a Muslim ruler, rather than by rebels, and relies upon this technicality to dismiss Ibn

171 Zaman, RadiccdAge,310.

172 Alexandre Caeiro and Mahmoud al-Saify, “Qaradawi in Europe, Europe in Qaradawi: The Global Mufti's European Politics,” in Graf and Skovgaard-Peterson, eds., Global Mufti, 132.

173 See Chapter 4.

174 al-Qaradawi,Jihad, 2:1067.

175 al-Qaradawi,Jihad, 2:1065.

Taymiyya's detailed analysis of declaring a regime un-Islamic.6?؛ He also does not address the numerous prophetic traditions relied on by militants to prove the apostasy of the Muslim regimes.

He also resorts to maslaha to claim that even apostate regimes should not be fought, unless one is sure of the ability to fight the regime, because “the re­sort to force inappropriately often leads to major catastrophes."؛?? As men­tioned earlier, emphasis on maslaha is a common tool in al-Qaradawi's jurisprudence. Salvatore argues that al-Qaradawr maslaha is “a tool for reas­serting control of maslaha through the ulama and a means for intervening on matters related to the common interest"8?؛ and that this tactic has helped al- Qaradawr position himself and other scholars of “moderation" as alternatives to extremist thought and as influential leaders of modern Muslim society. Al- Qaradawrs approach to the issue of the apostasy of the regime does indeed create the space for the jurist to scrutinize the ruler's acts, as well as determine legitimate acts to be taken in the event that the ruler has indeed strayed be­yond redemption. By setting the evident apostasy of the regime and its com­mission of grave prohibited acts as conditions to legitimize rebelling against the regime, an opportunity is created for scholars to scrutinize the acts of the government, and a self-censorship atmosphere is encouraged among govern­ments to avoid losing the legitimacy battle waged against them by Islamists. According to al-Qaradawr's argument, even partially secular governments are still legitimate under Islamic law. By ensuring their legitimacy, al-Qaradawr is ensuring that rulers are still somehow accountable to this legal system, even if they strip it of many of its essential elements. Moreover, even if rebellion were proven legitimate in the case of clear and evident apostasy of a regime as es­tablished by the scholars, scholars would still play a prominent role, since the maslaha consideration would require their expertise in Islamic law in order to weigh the toleration of an apostate regime against the potential hazards of re­bellion. To a great extent, his seemingly contradictory positions sanctioning violence in Libya and Syria may be read as a claim to such a space he aims to carve out for himself as an arbiter of legitimacy.9?؛

176 al-Qaradawi, Jih ad, 2:1032. As noted in Chapter 2, Ibn Taymiyya does not solely refer to the Mongols as apostates.

177 al-Qaradawi,Jihad, 2:1067.

178 Armando Salvatore, “Qaradawi's Malala: From Ideologue of the Islamic Awakening to Sponsor of Transnational Public Islam," in Graf and Skovgaard-Peterson, eds., Global Muj⅛,2⅛.

179 Zaman, Ra dical Age, 268. Zaman legitimately reasons that the sanctioning of the use of force against oppressive regimes in the Arab Spring, as in the case of Libya, contrasted to the case of Tunisia and Egypt, was an outcome of the excessive use of force by the former.

Al-QaradAwi also addresses the issue of targeting tourists. His argument re- Semblesjihadist revisionist works in its emphasis on a modern visa being a form of aman.180 He lists juristic traditions that show that the aman is granted once safety is ensured, whether directly or indirectly. He also argues that apos­tasy of the regime is irrelevant because what matters is the tourist's belief in a pledge of safety from any Muslim.181 Interestingly, despite his reliance on the condition of a legitimate authority to dismiss the legitimacy of random mili­tant groups Hghting apostate regimes, al-Qaraawi asserts the classical juristic approach that aman is granted by any Muslim to expand applicability of the pledge of safety to tourists, which shows that his approach to legitimacy and authority is to some extent selective. So, whereas Hghting an apostate regime must be done by the legitimate authority, aman may be granted by anyone. However, it should be noted that aman as a regime detailed in classical juris­prudence is a strong impediment to militant practices targeting tourists in Muslim territories. Nevertheless, al-Qaradawi fails to address the textual and juridical basis for the militant arguments listed in the next chapter, such as their reliance on the incident of Kab b. al-Ashraf to claim legitimacy of their tactics.

2.5.4 Transnational Militant Operations

Al-QaradAwTs approach to transnational militant operations is especially wor­thy of attention. It is well known that al-Qaradawi supports militant attacks against Israeli settlements, an opinion that was controversial enough to have him barred from entering the United States and the United Kingdom,182 but he condemns any other forms of attacks against civlians.183 In Fiqh al-jihad, he lists the reasons for considering the Palestinian case a special one. First, Israeli society is a “usurper colonialist settler racist occupier,''184 where every adult is either in the army or enlisted in the army reserves. Second, Israeli society is a special case because it is an invader society attempting to replace Palestinian society and take over their land, which means ajihad conducted against Israe­lis is a defensive one.185 Third, Israelis are accordingly ahl al-harb, which legiti­mizes attacks against their life and property. 186 Fourth, he relies on tatarus

180 In fact, al-Qaradawi accuses revisionist works of plagiarizing his earlier writings onjihad. See al-Qaradawi, Jihad, 1:17.

181 al-Qaradawi,Jihad, 2:1177-79.

182 Caeiro and al-Saify “Europe,” 125.

183 al-Qaradawi,Jihad, 2:1084-85.

184 al-Qaradawi,Jihad, 2:1086.

185 al-Qaradawi,Jihad, 2:1086.

186 al-Qaradawi,Jihad, 2:1086.

arguments to prove that any accidental damage caused to untargetable catego­ries is legitimate.187 Fifth, he argues that modern war mobilizes the whole soci­ety to participate in it and provide it with the necessary financial resources, which means that every citizen is, in effect, participating in the war.188 Finally, this is a case of necessity, which means Muslims may conduct impermissible acts.189 After legitimizing the attacks, al-Qaradawi offers justification for “sui­cide operations,” arguing that suicide operations are in fact acts of martyrdom, because “if the person who commits suicide dies fleeing in retreat [from life], the martyr dies as a proceeding attacker.”19٥

However, al-Qaradawi, together with other Muslim intellectuals, con­demned the 9/11 attacks and relied on the hirdba verse to prove that such an offence is prohibited.i9i Sadiki states that “the majority of learned scholars sympathize with the Palestinian cause and suicide bombing, even against civil­ians, is considered martyrdom, not terrorism,''192 yet, and as noted by Cook and Zaman, it is hard to show strict jurisprudential basis for condoning Palestinian suicide operations, while denouncing the 9/11 attacks.193 In fact, alZwahiri's justifications for the attacks, detailed in the next chapter, are almost identical to al-Qaradawi's. But unlike most other scholars, who simply attempt to pre­sent their arguments as jurisprudential ones, al-Qaradawi's notion of maslaha is best employed in making this distinction. First, he argues that martyrdom operations should target primarily Israeli soldiers and that any damage to the lives of children, non-combatant women, or old men should be only accidental and necessary. The fact that such damage is tolerated in case of necessity does not allow for the expansion of the resort to such tactics. As noted by Caerio in his study of al-Qaradawi's position on mortgages in Europe, al-Qaradawi is “adamant against exporting the fatwa,''194 maintaining the authority and the freedom of the jurist in dealing with each specific situation on its own merits.

187 al-Qaradawi,Jihdd, 2:1087.

188 al-Qaradawi, Jih dd, 2:1087.

189 al-Qaradawi, Jih dd, 2:1088.

190 al-Qaradawi, Jih dd, 2:1089.

191 Nafi, “Fatwa,” 80.

192 Laribi Sadiki, “One ‘Islam,' Many ‘Islams': Understanding the Arab-Islamic Perspective on

11 September in a Globalising World,” Irish Studies in International Affairs 13 (2002), 52.

193 David Cook, “The Implications of Martyrdom Operations for Contemporary Islam,” The Journal OfReligious Ethics 32, no. 1 (2004), 144, and Zaman, Radical Age, 275.

194 Alexandre Caeiro, “The Social Construction of Shari'a: Bank Interest, Home Purchase, and Islamic Norms in the West,” Die Welt des Islams 44, no. 3 (2004), 371.

We permitted such operations to the brothers in Palestine because of their special circumstances in defending themselves, their family, their children and their hurma (protected possessions), forcing them to resort to those operations, because they had no other alternatives. We did not permit those operations outside Palestine due to the lack of a necessity that permits and obligates [the attacks].!95

In addition to asserting the authority of the jurist to address seemingly similar situations differently, al-Qaradawi emphasizes the special nature of the con­flict, as noted earlier. According to him, the war with Israel is a war where the enemy is attempting to annihilate the Palestinians, which justifies the tactics. But as argued by Cook and Sadiki, al-Qaradawi's response is internally incon- sistent.196 However, its inconsistency does not stem from the distinction be­tween operations in and outside Israel as Cook and Sadiki claim, because a pragmatic reasoning is provided for that distinction, regardless of whether or not one is inclined to accept it. Rather, it is his attempt to claim definitive juris­prudential and textual basis for both positions that renders his approach in­consistent, especially in light of his recent extension of permissibility to attacks against the Syrian army.197 Alternatively, if al-Qaradawi had adopted a contex­tual, policy-oriented approach that acknowledged the possibility for multiple interpretations of the texts and the juristic tradition, it would have been more difficult to accuse him of incoherence.

2.5.5 Apyroachto Baghy

Unlike the literature published by state institutions, al-Qaradawi is willing to acknowledge the regime of baghy as a legitimate legal regime. However, unlike most classical jurists, who were pragmatic enough to disregard the legitimacy of rebellion as a factor in determining the rules applied to the conflicts al- Qaradawi makes it clear that “armed rebellion against him [the Imam] is

195 al-Qaradawi,Jihad, 2:1092.

196 Cook, “Martyrdom,” 144, and Sadiki, “Islams,” 52.

197 Ten TV, “al-Baytbaytak: al-Shaykh Yusuf al-Qaradawi yudir fatwa tubil tafjir al-intilari li-nafsahu buna' 'ala talab a!-jama'a," Youtube video, 4:19, posted November 2015, online:, accessed 2 March 2017. It should be noted, however, that a serious distinction between Israel and Syria is that his justification for an attack in Syria is directed solely against the military and not civilians, hence the potential challenge is primarily in the legitimacy of presumed suicide in those attacks.

198 Abou El Fadl, Rebellion, 326.

prohibited baghy that must be ended unless the imam commits evident kufr”[99 He also divides disobedience to the ruler into three types: highway robbers (who are not considered bugha), individual dissenters with no powers (whom he equates with highway robbers), and khawarij.200 By using the term khawarij to refer to rebels, al-Qaradawi is invoking the legacy of a group negatively as­sociated in the minds of Muslims with the rebellion against Ali and his assas­sination, thus reiterating the atrociousness of the act.

But al-Qaradawi is not attempting to abolish the whole regime of baghy. On the contrary, he reiterates the just and humane nature of the regime. He also argues it was inspired by the Rightly Guided Caliph, Ali b. Abi Talib, which means its regulations must be upheld and respected. He relies on juristic posi­tions to show that those who retreat, are wounded on the battlefield, or are capttired during the course of Hghting may not be killed. He also quotes jurists stating that those who do not Hght may not be killed. Bugha may not be fought using particularly destructive weapons such as mangonels or any weapons of mass destruction.20i

Unlike his analysis of other conflicts, al-Qaradawi is extremely faithful to thejuristic tradition and offers minimal innovation of the rules adopted by jurists, but he fails to address a very important loophole in his analysis, evi­denced by juristic positions on baghy. Most jurists created a distinctive code for bugha because they were Muslims - tactics employed in conflicts with non­Muslims were inappropriate for Hghting adherents of the same religion. The rejection of killing the wounded, the captured, or those retreating was often articulated to point out that practices employed with non-Muslims could not be resorted to with bugha. Similarly, the ban on weapons of mass destruction was because of the reluctance to inflict such damage on Muslims. But al- Qaradawi does not address this controversy, and he leaves a very critical ques­tion unanswered: if the rules for Hghting bugha were similar to those stipulated for fighting unbelievers, why did jurists create this special branch of law?

The contradiction is even more evident in al-Zuhayli's work. Al-Zuhayli again lists the regulations of baghy without any reference to modern-day appli­cation. But when listing those regulations, he mentions the difference between the techniques employed in their combat with those applicable to non-Mus- lims and lists several regulations that contradict his claims about the conduct of conflict with non-Muslims.

199 al-Qaradawi,Jihad, 2:995.

200 al-Qaradawi,Jihad, 2:997-98. Al-QaradSwi cites jurisprudence stating there are four types but only mentions three of them.

201 al-Qaradawi,Jihad, 2:1004-7.

The hukm of fighting them differs from fighting the unbelievers in eleven ways, as clarified by al-Qarafi. Those are that the purpose of fighting them is to stop them and not to kill them, their retreaters should not be pur­sued, their wounded should not be killed and their captives should not be killed, their money should not be taken as booty and their children should not be captured, an infidel may not be relied on in their combat, a peace agreement stipulating their payment of money may not be made, mangonels may not be used against them, their plantations may not be burnt and their trees may not be cut down.202

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