a!-Qa'ida Debated

This section examines the 2007-8 debate between Ayman al-Zawahirr, al- Qa'ida's ideologue, and Sayyid Imam 'Abdul 'Azrz,9 a former leader of the Egyp­tian militant group, al-Jihad, and widely referred to as its ideologue^ who published a widely discussed revisionist document, “Wathrqat tarshrd al-jihad fi Misr wa-l-'alam'' (“The document of prudence in jihad in Egypt and the world”).؛؛ The document denounced many of the military tactics employed by al-Qa'ida and was promptly followed by a long rebuttal by al-Zawahirr, al- Tabrta,: Rlsdfa fftabrtat ummat dbqafam wafsayf min m^c^r^c^cu^c^t tuhmat af- khawr wa-1-daf (“Exoneration: A treatise in exoneration of the nation of the pen and the sword from the defect and the accusation offrailtyandweakness")J2 Al-Zawahirr's riposte was followed by a further response by 'Abdul 'Azrz, “al-

9 Also known as 'Abdul Qadir b.

10 See e.g. Fahmr Huwaydr, “Mulahazat 'ala l-muraja'at,” al-Ahram (11 December 2007), 11.

11 Sayyid Imam 'Abdul 'Azrz, “Wathrqat tarshrd al-jihad fr Misr wa-l-'alam,'' al-Masry al- Kium, published in a series of articles from 18 November 2007 to 4 December 2007.

12 Ayraanaf-Zawahitt,, alTabria Risala fitabratummatalqalam wal-sayf min ³ã^ñ^ã^ññ^؟^ñ^³ tuhmat al-khawrwa-l-daf,January 2008, online:, accessed 21 June 2011.

Taiiya li Kitab a!-Tabri'a" (“Exposure of the exoneration book”).3؛ Analysing this written debate rather than attempting to cover the vast militant produc­tion of a!-Qa'ida provides a snapshot of both active and revisionist thought within militant ideologies Moreover, the mutual accusations of selective reli­ance on Islamic texts andjurisprudence offer a rare opportunity for under­standing how militant thinkers respond to such accusations and the techniques they employ to refute them.

Abdul Azιz's revisionist work is not the first in Egypt or the region.

13 'Abdul 'Aziz, “al-Ta'riya li Kitab a!-Tabri'a," al-Masry al-Youm, published as a series of articles from 18 November 2008 to 2 December 2008.

14 A militant group established in Egypt in the 1970s.

15 Najil Ibrahim 'Abdullah, “al-Jama'at al-Islamiyya bayn al-mubadara wa-l-muraj'a,” in al- Muraja'at rniin Ojamaat al-Isamiyya llla aljha, e⅛. Dtaa' Rashwirn fCa⅛o∙. a∖-AR⅛m, 2008), 39.

16 'Abdullah, “al-Jama'at al-Islamiyya,” 39. See also Khalil al-Anani, “Jihadi Revisionism: Will It Save the World?,” Middle East Brief No. 35, Crown Center for Middle East Studies, Brandeis University, April 2009, online:, accessed 21 June 2011.

17 Rashwan, “al-Muraja'at: al-Ma'na, al-siyasa, al-dalalat,” in al-Muraja'at min aljama'at al- Islamiyya illa al-jihad, ed. Diaa' Rashwan (Cairo: al-Ahram, 2008) 14.

18 Rashwan, “Muraja'at,” 15.

19 Rashwan, “Muraja'at,” 15. See also Amr Hamzawy and Sarah Grebowski, “From Violence to Moderation: aljama'a al-Islamiya and al-Jihad,” Carnegie Papers No. 20, Carnegie Middle East Center, Carnegie Endowment for International Peace, Washington, D.C., April 2010, 3.

20 Rashwan, “Muraja'at,” 15.

21 Hamzawy and Grebowski, “Moderation,” 3.

schoolgirl at the hands of al-Jihad during an assassination attempt against Prime Minister Atif Sidqr in 1993 was “paradigmatic of a public relations disas­ter for radicals, as it raised the following question: if they were trying to estab­lish a just Muslim state, why did a little girl have to die?”22 On the other hand, critics like alZwahirr argue that any revisionist work issued from inside Egyp­tian prisons, notorious for their infamous torture techniques, should be auto­matically suspect.23

2,A Abd,ul‰l^d,afZ,aMhrlomCond,eshiptoEιuty

Al-Zawahirr and Abdul Azrz crossed paths as leading figures in al-Jihad. With the death of Nasir and the ascent of Sadat to power in 1970, Islamists were given more freedom to propagate their ideologies.24 Such freedom ended up with the establishment of a!-Jama'a al-Islamiyya, the umbrella organization for most modern Egyptian Islamist militant movements.25 But the relative mutual toleration between Sadat and Islamist movements was disrupted by the 1979 peace accord with Israel, which angered many Islamist groups. As a reaction to the peace accord, Abdul Salam Faraj (d. 1982), a key militant figure later executed for the assassination of Sadat, founded al-Jihad the same year.26 Both Abdul Azrz and al-Zawahirr met as students at the Faculty of Medicine at Cairo University in the early 1970s.27 Abdul Azrz claims that he never partici­pated in an Islamist organization until his departure from Egypt in 1983, after accusations of involvement in Sadat's assassination.28 However, a lawyer previ­ously imprisoned for participation in Islamist organizations, Montassir al- Zayat, states that Abdul Azrz was the leader (amir) of the cell created by al-Zawahirr in 1968.29 Whether or not he was officially involved in any organi­zation, Abdul Azrz authored two seminal jihadist texts, al-Umdafi i^tdad al- Udda (“The reference on making preparations [fory'ihad]”) and al-Jamif talab al-^cilm al-sharif (“The comprehensive [book] in the pursuit of honourable knowledge”).

22 David Cook, “Islamism andJihadism: The Transformation of Classical Notions of Jihad ⅛⅛o an YdeoTogy of- Terrorism” Totalitarian Movements c^ndPoli١;ical Religions to, no.2 (2009), 182.

23 al-Zawahir, TabrVa, 5.

24 Monta⅞⅞⅛ td-Zayr, al-Jama'at al-Islamiya Ritya min alahil fCa⅛o-. Dar Mr aT- Malrusa, 2005), 36.

25 al-Zayat,Jama'at, 67.

26 Bonney, Jiha d, 288.

27 Jarret M. Brachman, GlobalJihadism: Theory and Practice (New York: Routledge, 2009), 74.

28 “al-Haya ft Sijn Tura al-Mir Tulawir Salib Wathiqat tarshrd al-jihad fr Misr wa al-'alam,'' al-Haya (8 December 2007), 15.

29 al-Zayat, Jama'at, 135.

30 al-Zayat, Jama'at, 136.

found in the possession of many militant Islamists.3i As a matter of fact, in a 2013 televised interview 'Abdul 'Azrz asserted that al-Umda, but not al-Jdmi^c, was used by Bin Ladin as a primary source for teaching jihdd.32 Abdul 'Azrz and al-Zaw hrrr met again in Pakistan, where according to al-Zayat, 'Abdul 'Azrz was also al-Zawhirr's amir.^{[31] [32] [33] [34] [35] [36] [37] [38] [39] [40] [41] In 1993, 'Abdul 'Azrz moved to Sudan, from where he maintained contact with al-Zawhirr. 'Abdul 'Azrz often asserted that he was opposed to the operations conducted by al-Zaw hirr in Egypt at the time,34 but Brachman claims that he continued to provide religious and juris­tic justification for such operations.35 Regardless of his past involvement with al-Jihad, it is widely accepted that 'Abdul 'Aziz's official association with mili­tant organizations ended when he moved to Yemen to practice medicine. Thereafter he was arrested by the Yemenis and later turned over to the Egyp­tian authorities, remaining in prison until his release after the 25 January 2011 uprising.36}

The warm relationship between 'Abdul 'Azrz and al-Zaw hirr was perma­nently severed as of 1994.37 'Abdul 'Azrz claims the rift was caused by al- Zawahirs resorting to indiscriminate violent operations in Egypt, operations he has long objected to.38 However, Brachman cites jihadist accounts stating that 'Abdul 'Azrz was infuriated when al-Zawahirr reffised to credit his shared authorship of al-Hasdd al-murr (“The bitter harvest''),39 a book written as a critique of the Muslim Brotherhood and its toleration for the Egyptian regime.

Al-Zawahirr came from a privileged Egyptian family of renowned doctors, diplomats, and religious scholars, including a grand shaykh of al-Azhar.4٥ From his early involvement with militant groups, he was committed to mili­tant attacks rather than the non-violent Islamic transformation of society« He was imprisoned in the aftermath of the Sadat assassination and was tor­tured in prison to implicate his colleagues.42 Although he later stated in court that he had confessed under duress (and used the trial to expose to interna­tional journalists the severe torture the defendants endured),43 Abdul Aziz used that incident to discredit al-Zawahiri as treacherous.44 According to Lacroix, prison was a turning point for al-Zawahiri. Before prison, he was com­mitted to regime change but was convinced it should be achieved through a coup d'etat to avoid collateral damage.45 But the torture and humiliation he experienced in prison radicalized him, leading him to endorse the more vio­lent military tactics of the rggos.46

Al-Zawahiri later moved to Pakistan and met Bin Ladin in 1986.47 For some time, Afghanistan seemed like a miracle solution to the problem of Islamic militancy faced by Arab regimes. In addition to allowing those regimes to help their U.S. ally in its Cold War efforts to deal a blow to the U.S.S.R., it meant dis­posing of the threat posed by militants to those regimes.48 After all, the leader of the Arab jihadists in Afghanistan, the Palestinian Abdullah Azzam (d. 1989), was more interested in Hghting external enemies than Arab regimes.49 Al- Zawahiri, who was more committed to confrontation with the Egyptian re­gime, directed his attention to Bin Ladin, whose links with Saudi funders attracted al-Zawahiri.50 Thus, al-Zawahiri attempted to draw Bin Ladin away from 'Azzam.51 But the Iraqi invasion of Kuwait meant a divergence of interests between the two comrades. When Saudi Arabia resorted to U.S. support in the liberation of Kuwait, Bin Ladin offered assistance to the Saudi regime to avoid reliance on “infidels,” but was snubbed.52 Bin Ladin's primary objective was to Hght the U.S.

42 al-Zayat,]ama'at, r50.

43 Lacroix, “Veteran,” r53.

44 'Abdul 'Aziz, “Ta'riya” (r8 November 2008).

45 Lacroix, “Veteran,” 151.

46 Lacroix, “Veteran,” 152.

47 Bonney, Jihad, 358.

48 Gilles Kepel, “The Origins and Development of the Jihadist Movement: From Anti­Communism to Terrorism,” Asian Affairs 35, no. 2 (2003), 94.

49 Lacroix, “Veteran,” 155.

50 Lacroix, “Veteran,” 154.

51 Lacroix, “Veteran,” 155.

52 Lacroix, “Veteran,” 156.

53 Lacroix, “Veteran,” 156.

pendentjihad objectives.54 AZwhii engaged in several militant operations in Egypt in the 1990s, including an assassination attempt against the prime minister, killing a schoolgirl. But as mentioned earlier, these operations even- Pially failed because of a security crackdown and the failure of those groups to shift public opinion in their support. According to Kepel, al-Zawahiri's failure to maintain jihad in Egypt led him to ally with Bin Ladin.55 In 1998, Bin Ladin, al-Zawahiri, and other leaders of militant groups issued a statement establish­ing the World Islamic Front Against the Jews and the Cιusaders.56 The failure of the Oslo Accords and the second Palestinian intifada provided the opportu­nity for the Front to attempt to win over Muslim hearts and minds.57 After the Front was established, several attacks were launched against U.S. targets, in­cluding U.S. embassies in Tanzania and Kenya in 1998, the warship U.S.S. Cole, and hnally, the 9/11 attacks.58

As Esposito notes, scholars have disagreed over why al-Zawahiri shifted his focus from the closer enemy, Egypt, to the further enemy, the United States.59 Kepel argues it was a strategic choice triggered by the realization that it was easier to mobilize the masses against an external, non-Muslim enemyO Bon­ney believes that al-Zawahiri convinced Bin Ladin to adopt more violent, indis­criminate attacks, while Bin Ladin converted al-Zawahiri to strategic warfare against the further enemy 1 Esposito notes that some other experts believe that al-Zawahiri always had a more international oudook.62 However, this be­lief fails to account for al-Zawahiri's history of militant work and his focus on Egypt, except for the brief interruption of the Afghan war. At any rate, the alli­ance between the two helped set up one of the most widely recognizable mili­tant organizations, with a complex and far-reaching global network.

2.2 Muaja'at al-Jihd.∙ a Militant Debate

To a great extent, the exchange between al-Zawahiri and Abdul Aziz mirrors many other contemporary works on the issue of armed conflict in Islam, with

54 Lacroix, “Veteran,” 156.

55 Gilles Kepel, The Warfor Muslim Minds: Islam and the West (Cambridge, MA: The Belknap Press of Harvard University Press, 2004), 2.

56 Kepel, Minds, 92.

57 Kepel, Minds, 2.

58 Kepel, Minds, 92-93.

59 John L. Esposito, Unholy War: Terror in the Name of Islam (New York: Oxford University Press, 2002), 20.

60 Kepel, Min ds, 2.

61 Bonney, Jihad, 358-55.

62 Esposito, Unh oly War, 20.

most of the debate addressing issues relating to the legitimacy of engaging in armed conflict with different categories of political establishments/states, rather than on the rules governing the conduct of the armed conflict itself. This focus is understandable in the context of the debate - the initial document published by Abdul Aziz, as evident from its title, with its focus on prudence in jihad, aimed at limiting the application of jihad in modern times. Al- Zawahiri's book was a refutation and a challenge to the document, examining rules of undertaking jihad rather than rules regulating it. However, the three documents under examination here dedicate some attention to issues relating to the conduct of jihad, notably indiscriminate targeting and aman. In addi­tion to touching upon other issues addressed in the documents when relevant, this chapter focuses on the analysis of these two issues.

2.2.1 Targeting

Tatarus (shielding), which refers to situations whereby targetable groups shield themselves behind untargetable groups, such as women, children, and Muslims,63 as well as to unintentional harm/killing inflicted upon these groups in the course of fighting, occupied the minds of jurists like al-Shaybani, al-Shafi'i, and Ibn Hazm. The issue of tatarus is brought up in Abdul Aziz's treatise in his discussion of terrorist attacks targeting non-Muslim states. He argues that the multireligious nature of modern states means that any attack against a non-Muslim state potentially leads to injury or death of resident Muslims.64 He refutes the reliance on tatarus as a legal tool to allow Muslim killing on two bases. First, he argues that jurists do not allow the killing of a Muslim in the course of Hghting unless it is in the course of jihad al-daf (de­fensive jihad) and is absolutely necessary.65 Second, he states that an attack inside a state of unbelievers (bilad al-kuffar) is not analogous to the situations of tatarus referred to in early jurisprudential books, where the situation envis­aged by jurists was Muslims taken captive and placed at the front of the non­Muslim army to prevent the Muslim army from fighting.66

This particular obstacle was dismissed by 'Abdul 'Aziz in his earlier books. In al-JamT, he quotes Ibn Hazm's position that a Muslim should never live in non­Muslim territories unless obligated,^? and in al-Umda, he argues that Muslims

63 Referred to by some as civilians, but as previous chapters and this chapter show, this reference is inaccurate.

64 'Abdul 'Aziz, “Tarshid,” al-Masry al-Youm (25 November 2007).

65 'Abdul 'Aziz, “Tarshid” (25 November 2007).

66 'Abdul 'Aziz, “Tarshid” (25 November 2007).

67 'Abdul 'Aziz (authored under 'Abdul Qadir b. 'Abdul 'Aziz), al-Jamiftalab al-4lm al-sharlf, 618, online:, accessed 12 April 2010. may be killed in the course of fighting apostate governments, citing Ibn Taymi- yya's position that the coerced can be killed.68 He also cites a prophetic hadlth stating that those who are coerced into fighting alongside corrupters will be resurrected in accordance with their intentions.69 In fact, 'Abdul 'Aziz argued that such an obstacle would “jeopardize jihad in both forms [defensive and of­fensive], since there is no country that does not have Muslims intermixed with kuffar”٦٠

Given that the “Tarshid” document is in effect a revision of the author's ear­lier views, retractions are to be expected. The author would normally be ex­pected, however, to refute those earlier views rather than simply to rely on the general prohibition of killing Muslims without making any attempt to counter views widely held by other militants. Moreover, 'Abdul 'Aziz is not even willing to acknowledge that there is a contradiction between the “Tarshid” document and his earlier works. When asked in an interview about this contradiction, he said, “What is in al-Umdaflidadal-Udda and al-Jami^care abstract ahkam [i.e., mere dm, in this case, jurisprudence] that should not be interpreted and ap­plied to reality except by someone qualified to issue/pronounce fatwa.”71 That justification is hardly satisfactory, partly because the books were written by a jihadist in jihadist circles and were not a mere intellectual exercise. But pri­marily, it is unsatisfactory because the claim elevates his book to the status of an authoritative primary text in an attempt to avoid scrutiny. Whereas it is common to argue such an interpretation of the Qur'an, sunna, and other sources, or possibly even to argue that classical jurisprudential texts should only be examined by specialists, it is a novelty to argue that contemporary commentaries cannot be examined or analysed by non-specialists.

In addition to contradicting earlier works, 'Abdul 'Aziz's claim that Muslims can be killed unintentionally only in defensive wars moves away from most classical juristic positions, including from those of many jurists on whom 'Abdul 'Aziz relies in other parts of his work, such as al-Shafi'i and al-Shaybani. He fails to mention that both these scholars allowed the Muslim army to at­tack a fortress, even if Muslims were present.72 Logical interpretation would lead the reader to understand an attack against a fortress as an act of offen­sive rather than defensive jihad, especially if one were to employ a restrictive

68 'Abdul 'Aziz (authored under 'Abdul Qadir b. 'Abdul Aziz), al-Umdafl idad al-'udda, 323, online:, accessed 12 April 2010.

69 'Abdul 'Aziz, Umda, 314.

70 'AbdWAzVzyUmdaiA.

71 Interview with 'Abdul 'Aziz, “al-Haya fi Sijn Tura al-Misri tuwir sahib Wathiqat tarshid afjihad fi Misr wa-l-'alam,'' al-Haya (12 December 2007), 15.

72 al-Shafi'i, Umm, 4:409; al-Shaybani, Siyar, 102.

understanding of defence that precluded /،had against a country colonizing or exercising hegemony over Muslim territories.

The other point Abdul Aziz raises against such attacks stems from the means by which the individual conducting the attack enters bllad al-kuffar, the visa. He argues that the visa is a form of aman granted to the individual by the host country. Among his sources, he argues that al-Shaybani says that “if the Muslim forges their handwriting and enters on its basis b،lad al-kuffar, he is obligated to be loyal to them.”?3 In addition to relying on verses and hadlths that denounce treachery in general, he also relies on a prophetic hadlth stating that whoever commits injustice against someone with whom there is a pact or a dhlmml, will not smell Heaven.74 Looking at Abdul Aziz's earlier works, it is clear that he believes strongly in the modern entry and residence visa systems as forms of aman, as evident from his earlier position in al-Jam،", where he ar­gues that a visa entitles the entrant to the protection of soul and property.75 The analogy of the visa to the pact of aman is one of Abdul Aziz's strongest arguments because ofthe wide respect for aman acrossjurisprudential works.76

It should be noted, however, that 'Abdul 'Aziz's reliance on aman to de­nounce terrorist attacks is a tactical choice that allows him to refrain from ad­dressing the primary issue - unintentional harm caused to untargetable groups. His argument leaves us, for example, with little guidance about the jurisprudential ruling on a Muslim national of a non-Muslim state committing a terrorist attack in that non-Muslim state without needing aman to be in that particular country, a tactic that has recently seen a significant surge with isis's reliance on nationals of Western states. 'Abdul 'Aziz does make some second­ary arguments to support his rejection of such attacks. He argues, for example, that the Prophet always fought outside city borders, where combatants and non-combatants were distinguishable.?? But he makes no reference to widely cited claims that the Prophet besieged Banti !-Nadr and allowed their trees to be burnt,78 hence inflicting harm beyond enemy combatants. He also moves away from the common interpretation of the prophetic hadlth said to have al­lowed night raids even if women and children were present during the course of fighting, by stating that the hadlth was in reference to night combat.79 And

73

74

75

76

77

78

79

'Abdul 'Aziz, “Tarshid” (25 November 2007).

'Abdul 'Aziz, “Tarshid” (25 November 2007).

'Abdul 'Aziz, “Tarshid” (25 November 2007).

AwbatL IkLtlaf, 25-31.

'Abdul 'Aziz, “Tarshid” (25 November 2007). ‘AbdtAAztz.,'Umda,343.

'Abdul 'Aziz, “Tarshid” (25 November 2007). he does not address the wide juristic interpretation considering the hadlth to have been in reference to night raids. Arguing that the reference is to combat and not raids assumes an active battle between two parties rather than one party raiding the other and surprising it. Such an interpretation allows Abdul Aziz to avoid dealing with any possible analogy between a night raid, which by its nature does not distinguish between those who may be targeted and those who may not, and modern terrorist attacks. In fact, in al-Umda he argues that the prohibition against killing women and children is a prohibition against tar­geting them if they are distinguishable from the enemy, since the aforemen­tioned hadlth allows bayat (lit. awaiting at night),80 defined by Ibn Qudama (d. 620/1223) as raiding and attacking the enemy by surprise without being able to distinguish between men, women, and children.8i

Seemingly, Abdul Aziz and al-Zawahiri are equally aware that the schoolgirl Shaymaa's death during the attack against the prime minister damaged public sympathy for militant operations. Abdul Aziz is intent on capitalizing on this damage. In his argument against indiscriminate attacks, he colourfully la­ments how “the shrapnel rested in a frail body going by the name of Shaymaa.''82 To some extent, it feels as though Abdul Aziz is convinced he does not need to offer a detailed argument to prove a point most of the public would be willing to adhere to - the idea that no justification can be provided for the death of such a young girl.

Aware of the damaging effect of the reference to this incident, al-Zawahiri offers a very detailed response to the issue of indiscriminate attacks and the casualties to women and children. First, he refers to the hadlth on night raids relied on by 'Abdul 'Azfz and cites Ibn Qudama and other jurists to prove the hadlth is understood as a licence for indiscriminate night attacks.83 Second, he argues that indiscriminate attacks are permissible because catapults were used by the Prophet against the people of al-Tif.84 Third, he argues that ju­rists allow the killing of Muslims if they are used as shields by non-Muslims. The fact that untargetable shields may be killed in the course of fighting with non-Muslims is then relied on as a Ifirther proof that indiscriminate attacks are permissible. Here, al-Zawahiri provides a survey of different juristic views on attacks against non-Muslims shielded by those who may not be targeted. He

80

81

82

83

84

‘AbdufiAzMfiUmda, 3A5.

al-Zawahiri, Tab ria, 33.

'Abdul 'Aziz, “Tarshid” (22 November 2007). al-Zawahiri, Tab ria, 32--3, 130-31.

al-Zawahiri, Tab ria, 132. starts off with Malik and al-Awazai and their rejection of such attacks.85 He then moves on to scholars who allow it if necessary but order the payment of blood money to Muslims who are injured in the process,86 and quotes scholars like al-Shafi'i who allow the killing of women and children if they are not spe­cifically targeted and who reluctantly state that it is permissible to resort to indiscriminate tactics like burning and drowning if Muslims are present Fi­nally, he quotes the Hanafis, whose position is the most flexible in its allow­ance of such tactics and its reluctance to oblige the army to offer any compensation.88 In order to counter the public relations damage/adverse re­actions caused by Shaymaa's death, al-Zawahirr is keen to go out of his way to prove compassion for the death of the child. Although he argues that women and children may be killed in the course of indiscriminate attacks, he claims the Sidqr attack was planned on the assumption the school was undergoing renovation (i.e. that there were no students present there).89 Additionally, de­spite his reliance on jurists who do not impose the payment of compensation in the event of the accidental deaths of Muslims, he says that his group is will­ing to apply other juristic positions demanding the payment of compensation and offer such compensation to the girl's family.9٥ According to this narrative and the blood money proposal, al-Zawahirr offers a position that largely ad­heres to al-Shafirs position on killing Muslims shielding non-Muslims, includ­ing the payment of compensation and the attempt to avert damage by aiming at non-Muslims and limiting damage to Muslim children, a position fraught with its own complexities, as discussed in Chapter 2.

Aside from this tactical attempt to appease public opinion and neutralize the effect of the girl's death, al-Zawahirr's analysis of indiscriminate targeting is worthy of examination. Thejuristic survey offered by al-Zawahirr, and his willingness to quote classical juristic positions that contradict his own, give an initial sense of credibility and an impression to readers that his argument is more grounded in thejuristic tradition than 'Abdul 'Aziz's. But al-Zawahirr, who is very critical of 'Abdul 'Azrz for stretching analogical deduction to equate modern distinct regimes such as visas with aman, falls into the same trap of indifference to the historical context. For example, his attempt to create an analogy between weapons of mass destruction (including nuclear weapons)

85 al-Zawahirr, Tabrfa, 123.

86 al-Zawahirr, Tabrfa, 124.

87 al-Zawahirr, Tabrfa, 127.

88 al-Zawahirr, Tabrfa, 126.

89 al-Zawahirr, Tabrfa, 200.

90 al-Zawahirr, Tabrfa, 201. and primitive indiscriminate weapons (such as catapults) is UnconvincingI He does not show any awareness of the difference between the destructive capacity of a primitive rock-hurling machine and a traditional bomb, let alone a nuclear bomb. Although jurists acknowledged that mangonels portray some indiscriminate traits, their destruction of bystanders is still somehow subject to more control than a bomb that explodes in the middle of a city. Probably, this element of minor control of destruction caused by mangonels led jurists like al-Shafi'i to demand that Muslim warriors attempt to avoid hitting those who may not be targeted,92 a demand that would be almost impossible with a nuclear bomb or other wide-ranging weapons advocated as permissible by al-Zawahii.

Yet, al-Zawahirr does not always rely on extensive juristic citation to support his arguments. Whenever convenient, he expands the application of general principles to accommodate tactics employed by militant operations. One ex­ample of this expansion is his employment of reciprocity. We have seen how 'Abdul 'Azrz resorted to the general principles of the sanctity of Muslim lives to prove the wrongfulness of indiscriminate terrorist attacks. Al-Zawahirr seems to resort to the same approach when claiming that indiscriminate targeting by the enemy could justify the resort to such tactics by Muslims on the basis of the general principle of reciprocity.93 But as mentioned by 'Abdul 'Azrz, al- Zawahirr fails to recognize the exception of impermissible acts from reciproci- ty.94 For example, he quotes al-Shafi'i in obligating Muslims who cause the death of an animal to compensate with a similar animal rather than pay its value.95 In reference to conflict, he relies on some juristic positions that allow Muslims to inflict mutilation on enemy corpses in retaliation for similar acts by the enemy, and he relies on a statement made by Ibn Qayyim al-Jawziyya (d. 751/1350) that unbelievers' plantations may be burnt if the unbelievers had burnt Muslims' plantations.96 In all these examples, none of the jurists allowed the targeting of groups who may not be targeted but referred rather to acts that are arguably permissible, according to many jurists, such as the destruction of plantations. In fact, jurists like Ibn Hazm were very critical of the idea of com­mitting prohibited acts to gain military advantage. Criticizing the killing of animals with the objective of destroying the morale or the advantage of the

91 al-Zawahiri, Tab ria, 138.

92 al-Shaβ'i, „mm, 4:348.

93 al-Zawahiri, Tab ria, 134.

94 'Abdul 'Aziz, “Ta'riya” (22 November 2008).

95 al-Zawahiri, Tab ria, 134.

96 al-Zawahiri, Tab ria, 134.

enemy, Ibn Hazm says, “If one were to accept it, then why not kill their women and children as well?'97 Thus, al-Zawahiri's claim to reciprocity is far more problematic than Abdul Aziz's claim to aman as a restrictive obstacle to many militant operations, yet he is more comfortable accusing Abdul Aziz of expan­sive qiyas, despite his being guilty of using the same technique.

2.2.2 Aman: al-Zawahiri's Biggest Challenge

Al-Zawahirs approach to the issue of aman shows similar attempts to inno­vate beyond the juristic tradition. As mentioned earlier, he accuses 'Abdul Aziz of improper qiyas in his argument that a visa is a form of aman. For his part, al-Zawahiri offers multiple examples and modern juristic analyses to show that a visa is not a form of aman. He starts out by offering different definitions for a visa and argues that all definitions revolve around entry and residence rather than protection.98 He then argues that the visa cannot be considered a contractual agreement, because jihadists cannot engage in contractual agree­ments with infidels, nor are jihadists bound by international agreements gov­erning visa practice. This approach shows serious opportunism, since jihadists are entitled to protections bestowed upon their fellow citizens by virtue of in­ternational agreements between their country of citizenship and the host state, but at the same time they are relieved of the obligation of respecting those agreements. It can be argued that double standards when dealing with this issue reflect the kind of behaviour denounced by classical jurists when covering aman.99 For example, al-Zawahiri criticizes 'Abdul 'Aziz for “twist­ing” al-Shaybani's words when he states that al-Shaybani said forging a letter from UhIafharb Ao enter their land entAes aman to ahlaharb because he entered on its basis. ٥٥؛ Al-Zawahiri states that al-Shaybani was referring to Muslims who claim to be traders or messengers of the caliph. According to al- Zawahiri, those two groups do not have the “right” to attack enemy territory, because it was common practice in al-Shaybani's time to protect traders and messengers.“؛ But al-Zawahiri fails to take into account the authoritative com­mentary by al-Sarakhsi on the matter. Al-Sarakhsi states that ahI aI-harb are protected because they have no way of seeing beyond the claims made by en­trant Muslims, and because Muslims are obligated to avoid treachery. ٥2؛ In

97 Ibn Hazm, MuhaIIa, 295.

98 al-Zawahiri, TabrVa, 98.

99 al-Zawahiri, TabrVa, 98.

100 al-Zawahiri, TabrVa, 119-20.

101 al-Zawahiri, TabrVa, 119-20.

102 al-Shaybani, Sharh Kitab aI-Siyar aI-kablr, ed. Abu 'Abdullah Ismail al-Shafi'i (Beirut: Dar al-Kutub al-'Ilmiyya, 1997), 2:66-67.

fact, al-Zawahiri claims that if anyone were to go to a U.S. embassy, say he were a messenger from Mulla 'Umar, and demand a visa, he would be arrested. Ac­cording to him, the fact that Mulla 'Umar's messenger would be denied a visa is an indication of deviation from the standard practice of ensuring the protec­tion of messengers^ However, this particular point weakens al-Zawahiri's ar­gument on aman because it proves that militants entering the United States to commit a militant operation must conceal their identity in order to receive the permit. Concealing their identity to be granted protection, then taking advan­tage of this protection to launch attacks, plausibly is a form of treachery.

Al-Zawahiri also argues that in common practice, a Muslim is not protected in a non-Muslim country. He offers numerous examples of the lack of such protection, for example, “A Muslim may not apply the hukm of Qur'an on his wife if she disobeys him and refuses to share his bed... and if he tries to reclaim his right against her will, she has the right to sue him because he ‘raped' her.''!04 Moreover, he may not “prevent his son or daughter from committing obscenity or drinking alcohol or gambling.”!٥5 He also points out that many Muslims sus­pected of affiliation with jihadist networks have been arrested and their prop­erty confiscated, and that Muslims are often forced to pay taxes that contribute to a defence budget that is used against Muslim Interestsfoe Again, al-Zawahiri disregards the fact that most jurists did not argue that aman entitles Muslims to protection if they violate the laws of a non-Muslim state. In fact, al-Shaybani argued that hudud punishments should be waived if the crimes requiring such punishments were committed in dar al-harb.ι°7 Moreover, al-Zawahiri's reli­ance on Ibn Hazm to prove his point on this matter is further proof of the weakness of his claim. Ibn Hazm argued that it was not permissible for traders to travel to dar al-harb if they expected to be humiliated and to be forced to follow the host state's laws.108 Al-Zawahiri uses the argument to prove that it was not permissible for Muslims to follow non-Muslim laws, which would ren­der the visa an invalid contract under Islamic law because it allows for an im­permissible act. But Ibn Hazm did not argue that traders were to violate these laws or pretend to be willing to respect them in order to attack the host state. He simply argued that traders should refrain from travelling, which also meant refraining from resorting to treachery. As for the argument that Muslims would

103 al-Zawahiri, Tabrra, 120.

104 al-Zawahiri, TabrTa, 102.

105 al-Zawahiri, TabrTa, 102.

106 al-Zawahiri, TabrTa, 102.

107 al-Shaybani, Sharh, 5:108.

108 al-Zawahiri, TabrTa, 146. be forced to pay taxes in a non-Muslim state and that such money is used for defence purposes, one needs to remember that the jizya system was common practice at the time of classical jurisprudence and, as argued by Abdul Aziz, al-Shaybani allowed the payment ofjizya to non-Muslims.1٥9

But in addition to rejection of the host country's laws and regulations apply­ing to Muslims, al-Zawahiri makes two alternative claims about the invalidity of the visa as a pretext for protecting non-Muslims from attacks by Muslims entering a non-Muslim territory via a visa. He argues that even if the visa were to be perceived as aman, then aman is breached in the case of offence to the Prophet.11٥ He relies on the Kah b. al-Ashraf incident, in which the Prophet's Companions pretended to turn against the Prophet to gain Ibn al-Ashrafs trust, then killed him for offending the Prophet. But that argument is refuted in the rebuttal by Abdul Aziz, who rightly states that Kah b. al-Ashraf lived in Medina, so was a dhimml, not someone from dar al-harb.111 Employing a poten­tial case of deceit of a dhimml to prove that the same acts may be committed against members of dar al-harb is indeed an expansion of the applicability of this tradition. After all, many jurists set more stringent regulations on dhimmls, but not necessarily other non-Muslims. For example, al-Shafi'i demands that they abide by the laws of Islam, and Ibn Hazm demands they acknowledge the prophethood of Muhammad. The fact that dhimmls belonged to the Muslim polity, whereas other non-Muslims did not, could be seen as a basis for the Companions' attack against Ibn al-Ashraf, who might be seen as a violator of the rules of the polity in which he resided.

Al-Zawahiri also argues that Muslims (suspected jihadists) are often “sub­ject to deportation to a place where they are tortured or killed. Many political asylum seekers were deported to Egypt and other countries, where they were subjected to torture,”ii2 even if they possessed valid visas in “enemy” non-Mus- lim territory. According to him, if host countries consistently breach their aman agreement, then Muslims are under no obligation to respect it.113 This argument, in particular, might appeal to many Muslims who feel under attack by the West and who have witnessed the different rendition incidents, where­by suspects were sent by the United States to other countries to be tortured.114 As noted by Said, the rendition to torture practice eroded the legitimacy of the

109 'Abdul 'Aziz, “Tarshid” (21 November 2007).

110 al-Zawahiri, Tabrla, 108.

111 'Abdul 'Aziz, “Ta'riya” (24 November 2008).

112 al-Zawahiri, Tabrla, 100.

113 al-Zawahiri, Tabrla, 100.

114 For documentation and analysis of the rendition to torture policy, see Alan W. Clarke, “Rendition to Torture: A Critical Legal History,” Rutgers Law Review 62 (2009), 1-74.

United States in the Middle East.115 This argument may also be intended as a warning to Western countries that engage in rendition. What al-Zawahiri is saying is that as long as Western countries continue to send Muslims to loca­tions where they may be tortured, jihadists are more at liberty to disregard any aman owed to those states. But the argument does not necessarily carry much weight in the juristic tradition. As pointed out by Abdul Aziz, the aman agree­ment was always perceived by jurists as a very individual practice.116 Muslims granted aman to traders from entities against whom they waged war, and Mus­lims were granted aman in the dar al-harb. The aman agreement was always limited to the individual in question and did not extend beyond him or her. Accordingly, a breach of an aman agreement with one individual does not, and should not, affect an agreement with any other individual. For example, al- Shahi states that “if the enemy captures the Muslims' women and children, I would not prefer for them [Muslims granted aman] to be treacherous with the enemy, but I would prefer for them to ask them [the enemy] to retract the aman''117 before they start Hghting them. The situation explained above shows that al-Shafi'i envisioned a situation in which some Muslims would be entitled to aman, while others would not. In this case, those individually entitled to aman may not breach their aman agreement, even if the breach is intended to save women and children.

Additionally, terrorist attacks committed indiscriminately do not target solely those unbelievers who breach the aman, since they inflict harm on indi­viduals who have not taken any action to deprive them of the aman. To resolve this issue, al-Zawahiri relies on the notion of legal personality to consider the breach of aman by the government of a non-Muslim state a breach by all its citizens. Here, he relies on Nasir al-Fahd's fatwa considering all U.S. citizens legitimate targets. Despite his general inclination to accept that the visa is a form of aman, al-Fahd argued that:

US citizens are the heads [leaders] of disbelief in this era and the inflic- tors of the largest of harm on God and his Prophet.... There is no power for the president, the Pentagon, or the army without the people, and if

115 Wadie Said, “The Exceptional Nature of Terrorism: The United States and Middle East Legal Systems,” Hastings International and Comparative Law 32 (2009), 831-42. The Obama administration continued to uphold rendition. See David Johnston, “U.S. Says Rendition to Continue, But with More Oversight,” New York Times (24 August 2009), online:, accessed 19 July 2011.

116 'Abdul 'Aziz, “Ta'riya” (24 November 2008).

117 al-Shafi'i, Umm, 4:355.

they [those institutions] stray in their policies from the whims of the population, they would be overthrown.... They are a legal personality similar to Kah b. al-Ashraf. 118

Although this argument seems at face value to be a contextual argument that accommodates Classicaljurisprudence to modern-day reality, it fails to take into account the historical context of the development of classical works. An­cient regimes in perpetual war with Muslims, like Byzantium, were still politi­cal entities that received some kind of support from their individuals during wars with an outside enemy, even in non-democratic societies. As Abdul Aziz argues, “The leaders of the Persians and the Byzantines (Rhm) had no power without the support of their people. Yet, when the Companions fought them, they did not applyto them the notion oflegal personality invented by al-Fahd.''119

2.2.3 Fighting in “Muslim” Territories

Another point of contention between the two formerjihad, comrades is the is­sue of domestic jihad within the borders of a Muslim state. Ironically, Abdul Aziz criticizes al-Qa'ida for targeting the Ihrther enemy and not the closer en­emy, and argues that sharfa obligates Muslims to start their jihad with the closer enemy.120 At the same time, he attempts to discredit attempts to fight “Muslim” regimes. As is well established from militant literature, the debate around attacking Muslim regimes and fighting in their territories follows in the footsteps of Ibn Taymiyya and his assertion on heresy and apostasy of some Muslim regimes, as detailed in Chapter 2. However, in his revisionist “Tarshid” document, Abdul Aziz resorts to more classical understandings of rebellion, arguing that Muslims should not rebel unless the ruler's disbelief is clear and evident, relying on a hadlth to that effect.121 He also adds some historical ex­amples of rebellion, such as the rebellion of al-Husayn, to show that internal strife in the Muslim world often inflicted damage on Muslims.122 Finally, he quotes Ibn Taymiyya's reluctance to accept the legitimacy of rebellion against a Muslim ruler.123 But he fails to refer to Ibn Taymiyya's well-known endorse­ment of jihad against leaders who claim allegiance to Islam without acting in

118 Nir al Fahd, quoted in al-Zawahiri, TabrCa, 110.

119 'Abdul 'Aziz, “Ta'riya” (24 November 2008).

120 'Abdul 'Aziz, “Ta'riya” (25 November 2008).

121 'Abdul 'Aziz, “Tarshid” (22 November 2007).

122 'Abdul 'Aziz, “Tarshid” (22 November 2007).

123 'Abdul 'Aziz, “Tarshid” (22 November 2007). accordance with sharla>24 In fact, Ibn Taymiyya's three fatwas on the Mongols have made him a convenient jurist for modern-day militants, who rely on those fatwas to argue that the failure of modern Muslim regimes to uphold sharia means that they are the closer enemies who must be fought hrst.125 Abdul Aziz himself, in al-Jaml and al-lda, relied on Ibn Taymiyya to prove the apostasy of domestic regimes. In al-Umda, he relied extensively on Ibn Taymi- yya to prove the legitimacy of Hghting an apostate leader.126 For example, he defined dar al-ridda (the land of apostasy) as:

the land that was dar al-Islam at some point in time, then the apostates overtook it and implemented the rulings of the unbelievers [al-kuffar] in it, like the states referred to now as Islamic states, including Arab states. Those are lands of disbelief and apostasy, and jihad against its non-be­lieving rulers is a fard ^cayn on all its Muslim population.127

Lav argues that Abdul Aziz deliberately obfuscated by glossing over matters of takfir in his “Tarshid” document to avoid contradicting himself while pretend­ing that he tolerated the current regime, by refraining from offering a definitive position on whether the Egyptian state may be considered as dar kufr, thereby maintaining some level of consistency.128 However, it would be very difficult for Abdul Aziz, who refuses to renounce his earlier books, to argue that such a statement is a general theoretical one that should not be interpreted by non­specialists. His specihc reference to Aiab states as infidel apostates that should be fought by all Muslims is a fatwa in itself, hardly needing another mufti to interpret it. It is unclear how he would reconcile this position, coupled with his statement that the closer enemy should be fought first, with his claim that re­bellion against the ruler in Muslim countries contradicts sharia. The difficulty of such reconciliation is made evident in his 2013 televised interview, after his release from prison and during the brief reign of the Muslim Brotherhood after

124 See Chapter 2 for more details.

125 RashwSn, “Muraja'at,” 14.

126 'Abdul 'Aziz, ’Umda, 312.

127 'Abdul 'Aziz,Jami‘, 572-73.

128 Daniel J. Lav, “Jihadists and Jurisprudents: The ‘Revisions' Literature of Sayyid ImSm and aJ-Gama'a aJ-IsJamtyya” In Political Islam JJom l√^t^h^c^u^u^c^dl^o A^h^u^c^d,ir^eM, e⅛. Joseph Morrison Skelly, Kindle ed. (Santa Barbara, CA: Praeger Security International, 2010), loc. 1845-49.

the Aiab Spring, where he stated that the Mubarak regime and the Muslim Brotherhood's were not considered Muslim 129

Al-Zawahirfs response to the claim is multifaceted, with a focus on jurispru­dence, policy, and a portrayal of the Egyptian government's record of human rights violations and its alliance with the United States. He quotes a report is­sued by several respected Egyptian human rights organizations documenting incidents of extreme torture of Islamists, as well as attacks against women and children, to show that the current regime is un-Islamic.13٥ He also questions the possibility of changing the Egyptian regime in any non-violent manner with its continued suppression of peaceful demonstration and other forms of oppositional political participation.^

Jurisprudentially, al-Zawahiri does not attempt to challenge 'Abdul 'Aziz's claim that rebellion against the ruler is unjustifiable. He argues that rebellion in classical jurisprudence is of no concern to Muslims in theirjihad against the current regimes because those regimes are apostates rather than Muslim.132 Interestingly, both authors avoid the middle ground of the baghy legal regime and discuss rather the issue of apostasy because the pragmatism and the flex­ibility of rebellion rules under Islamic law prove inconvenient for both their positions. If one were interested in delegitimizing the resort to violence in dealing with the ruler, the baghy regime would prove highly ineffective, with its heritage of value-neutral regulation of such conflicts. On the other hand, if one were interested in Hghting the ruler, it is far less convenient to resort to baghy, with its stringent regulation of military tactics and its attempt to pro­mote a conflict situation with the least amount of casualties, than to resort to the regime governing apostasy, the least regulated type of armed conflict un­der Islamic law, in which some jurists even allow targeting apostate women, unlike other non-believing women.

129 “al-Duktur Fadl Munazzir alJihadiyin ma' 'Imad Adib,” Youtube video, 01:23:43. The inter­view was televised after the Muslim Brotherhood had come to power.

130 al-Zawahiri, Tabrfa, 91, quoting a report on a fact-finding visit conducted by the Egyptian Organization Against Torture, al-Nadeem Centre for Psychological Rehabilitation of Victims of Violence and Torture, and the Hisham Mubarak Law Centre, 15-17 November 2007.

131 al-Zawahiri, Tabrfa, 5. It is this focus on the Egyptian regime's autocratic governance that has led some commentators to argue the Arab Spring has eroded the legitimacy of al- Qa'ida as the sole tool for regime change. However, the reversion to authoritarianism makes this claim difficult to assess. See Richard Clarke, “Bin Laden's Dead, Al-Qaeda's Not,” New York Times (2 May 2011), online:, accessed 19 July 2011.

132 al-Zawahiri, Tabrfa, 88.

In this debate, one comes across an example that proves the convenience - for any militant - of avoiding discussion of the baghy regime and debating rather the conflict on the apostasy premise: that is, the targeting of non-Mus- lims visiting Muslim lands. If the governments allowing the non-Muslims in are apostate governments, then entry and work visas granted to non-Muslims are invalid, and Muslims may target those non-Muslim tourists and workers. On the other hand, if one were to treat the government as a Muslim, albeit cor­rupt, government, then the aman granted by this government would be valid and it would be obligatory on all Muslims, including rebels, to respect it and ensure the protection of those non-Muslims.

Having earlier claimed apostasy of the regime, Abdul Aziz is aware of how apostasy claims may reffite his rejection of rebellion against the ruler and at­tempts to counter such refutations. Accordingly, he tries to overcome the apos­tasy debate and to argue that even if one were to ignore the visa granted by the government, normally non-Muslims come on the basis of an invitation from a tourist office or an employer, which is a valid shar^ti aman.133 Al-Zawahiri re­sponds that such a claim is based on fictitious circumstances since the apos­tate governments are the ones that grant the pledge of protection: “The tourist coming to a tourism company or a hotel does not imagine that this entity is the one that would protect his life and property. Rather, he is certain that it is the government that does so.''i34 But as 'Abdul Aziz points out, this response disre­gards the ruling made by some jurists that in the event that such non-Muslims unknowingly receive an invalid aman, they should be escorted outside Muslim territories rather than be treated as legitimate war targets.135

The validity of the aman is not the sole obstacle set by 'Abdul 'Aziz to target­ing tourists. He also relies on the potential presence of Muslims in tourist groups as an obstacle, since Muslims should not be targeted.136 Additionally, reciprocity necessitates respecting tourists' lives, since Muslims are given aman in the form of a visa when they travel to non-Muslim territory. 137 He also argues that the Muslim obligation to treat the other well dictates the fair treatment of the other rather than his treacherous killing.138 But his most im­portant argument other than aman again relates to untargetable groups:

133 'Abdul 'Aziz, “Tarshid” (23 November 2007).

134 al-Zawahiri, Tabrfa, 152. Note that al-Zawahiri concedes that a visa is a guarantee of protection.

135 'Abdul 'Aziz, “Ta'riya” (24 November 2008).

136 'Abdul 'Aziz, “Tarshid” (23 November 2007).

137 'Abdul 'Aziz, “Tarshid” (23 November 2007).

138 'Abdul 'Aziz, “Tarshid” (23 November 2007).

If we assume that the foreigners in the country are inhdels who have no pact [of protection], then most of them may not be targeted even in the middle of the battle with the inhdels if they happen to be in the infidel camp. How can we then kill them intentionally when they are on their own?39؛

Many of these issues, such as reciprocity and the prohibition on killing Mus­lims, were earlier dealt with by al-Zawahiri when he addressed the issue of operations conducted in non-Muslim countries. But he fails to offer a convinc­ing response to Abdul Aziz's claim with regards to the intentional killing of tourists who belong to groups that should not be targeted. In order to refute Abdul Aziz, al-Zawahiri resorts to one of his least convincing arguments, the notion of the legal personality: “Women and elders in the West support their governments with the money they pay in the form of taxes and the votes they cast in elections of governments that transgress against us.”i4٥ If one were to reject the notion of the legal personality, the intentional targeting of these groups outside the context of any form of conflict or battlefield would be hard to justify. Even if one were to accept that notion of legal personality, it is un­clear how al-Zawahiri would justify the targeting of children, who have no legal capacity to allow for their classification as indirect participants in the conflict.

Abdul Aziz also relies on Ibn Taymiyya's view on punishment to support his thesis that not all non-Muslims should be killed. To argue that infidelity is not punishable on earth, he quotes Ibn Taymiyya saying, “We know that some peo­ple are not punished in this world [al-dunya] even if they are [treated as] infi­dels in the hereafter, such as dhimmls who accept the Jizya and the hypocrites who pretend to follow Islam.”؛« However, this quote makes no reference to re­fraining from fighting or killing infidels. In fact, one could possibly understand this statement as indicating that infidels who do not pay the jizya are indeed punishable. Al-Zawahiri again asserts the notion of legal personality, rejecting Abdul Aziz's claim and arguing that nationality is an indication of allegiance and fidelity to a political entity with the power to fight Muslims.42؛

This debate over the classification of residents of Muslim lands rather than the classification of the regimes governing those lands is very relevant because it is starkly different from the positions taken by ISIS and supported by 'Abdul 'Aziz in his 2013 televised interviews. But in this debate, both al-Zawahiri's and

139 'Abdul 'Aziz, “Tarshid” (23 November 2007).

140 al-Zawahiri, Tabria, 153.

141 Quoted in 'Abdul 'Aziz, “Tarshid” (23 November 2007).

142 al-Zawahiri, TabrVa, 154.

Imam's published revisionist works avoid the muddy issue of the status of those residents and seem to accept the notion that their protection from targeting must be respected. As a matter of fact, al-Zawahiri, despite using sectarian and inflammatory language on Christians, asserts that Egyptian Christians must be protected and calls on Muslims to refrain from inflicting harm on those Egyptian Christians who do not attempt to harm Muslims, raising interesting questions over whether he considers their dhimml status valid despite the de­clared apostasy of the regime.143 This vague reference indicates that al-Qa'ida, at least in this work, was unwilling to declare Muslims and non-Muslims resid­ing in Muslim territories targetable, unlike !SiS's approach to such categories, as clarified in the next section.

Looking at one side of the debate between al-Zawahiri and 'Abdul 'Aziz would give the reader the impression that the other side is manipulative in its reliance on Islamic law, but examining both sides together is a testament to the complexity, perhaps indeterminacy, of this old legal tradition. The debate shows how a yes/no response with regards to the legitimacy of militant attacks conducted by al-Qa'ida would be an oversimplification of the intricate legal issues involved in such a question. Both sides rely on textual sources - the Qur'an and sunna - to support their positions, offering at many times contra­dictory interpretations of the texts. Both sides invoke the opinions of promi­nent classical jurists to add weight to their arguments. Although al-Zawahiri shows more willingness to address juristic views that contradict his positions, both men are ready to disregard such juristic views when making their weakest arguments. Both criticize the other for resorting to qiyas when the issue in­volved stands against their promoted sets of rules. For example, al-Zawahiri is highly critical of 'Abdul 'Aziz's analogy between the visa and the Islamic aman system, whereas he is willing to deduce an analogy between primitive weapons such as catapults, with their limited destructive power, and bombs, employed to destroy city centres, and even hints at a potential analogy with weapons with extremely destructive powers such as nuclear weapons.

Finally, the two militant ideologues do not limit themselves to a formalist reliance on the text but often resort to policy arguments to support their views and analyse the current state of affairs. Whereas both agree that Western dom­ination and the creation of the state of Israel are the biggest calamities facing the Aiab world,144 they disagree over other matters. For example, 'Abdul 'Aziz argues against what he refers to as ftitile jihad, stating that with the current state of weakness, any operations conducted against governments and the

143 al-Zawahin, Tabrla, 167-70.

144 'Abdul 'Aziz, “Tarshid” (18 November 2007) and al-Zawahiri, Tabria, 138. West would ftrrther weaken Muslims.145 Al-Zawahiri argues that things could not get worse and responds with a question that would resonate among many Egyptians: “If we take Egypt as an example of Muslim and Arab states, is there hope of peaceful change in Egypt? Is there even hope of peaceful demonstra­tion in Egypt?... Is the situation in Egypt progressing or regressing?... Where is Egypt heading?"46؛

Such political reasoning shows that militant works are embedded in mod­ern politics. They do not blindly replicate classical jurisprudence, with no re­gard for the context, which means that the changing Middle East after the Arab Spring and its ensuing demise must have significant effects on militant thought. Whereas the assumption that terrorism is a product of repressive authoritari­an regimes is reductive, the exchange above show that repressive policies offer ammunition for terrorist organizations in their battles for sympathy. Moreover, both authors rely on notions such as maslaha to prove that their views not only comply with Islamic law but also promote the best interests of Muslims. This tendency to assess action on the basis of Muslim interest might allow for an alternative forum for engaging with militants, one that is premised on pragma­tism and an examination of the effectiveness of militant tactics. It should also be noted that both ideologues demonstrate political tact and a strong interest in winning over the average Arab/Muslim mind. The way they both dealt with the death of Shaymaa' shows an awareness of the need to build on/overcome that incident to gain sympathizers.

3