.png)
“Intent to Destroy”: Reflections on the Swedish Yazidi Genocide Case
- Paola Gaeta
- 3 days ago
- 7 min read
Written by Paola Gaeta
Reading the Swedish judgments in the Lina Ishaq case is an unsettling experience. The description of the atrocities inflicted on the Yazidi community by ISIS is presented with a level of factual precision that leaves little space for abstraction. The Stockholm District Court’s account of the attacks on Sinjar and the subsequent treatment of Yazidi men, women, and children (pp. 68–77) is harrowing: families torn apart, women and girls subjected to systematic rape and slavery, children deprived of language, religion, and identity. It is a stark reminder that behind the doctrinal debates to which we devote so much intellectual energy lie human beings whose lives have been shattered. I felt almost uncomfortable turning from this unbearable factual reconstruction to the more technical issue I wish to address here. And yet, it is through these legal details that the law tries to name what happened, and to frame violence in terms that allow us to understand its gravity.
The case concerns a Swedish woman who lived in Raqqa and was convicted of genocide, crimes against humanity, and war crimes. For present purposes, what interests me most is the genocide conviction relating to the forcible transfer of Yazidi children to ISIS households. Both the District Court (judgment of 11 February 2025) and the Svea Court of Appeal (judgment of 11 November 2025) found that the accused hosted Yazidi girls and boys in her home, controlled them, prevented them from practising their Yazidi religion, compelled some of them to perform Islamic prayers, and prepared them for transfer to other ISIS members as slaves (the Court of Appeal judgment is not yet publicly available online; I obtained the Swedish version by requesting it from the court’s archives and from the Prosecutor). The Court of Appeal describes these circumstances clearly, especially at pp. 14–17 and 20–21, where it confirms that Yazidi children were deliberately stripped of the cultural markers of their group and integrated—under coercion—into the community aligned with ISIS.
That such a serious conviction is grounded in practices that do not involve killing but rather the dismantling of a group’s identity raises an important question: what does the Genocide Convention mean when it requires an “intent to destroy” the group?
This is not a new question, but it remains one of the most contested elements of the crime. The orthodox view, dominant in the case law of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), is that the intent to destroy must always refer to the physical or biological destruction of the group (in particular, ICTY, Krstić, Appeals Judgment, 2004, paras. 25–26 and ICTR, Akayesu, Trial Judgment, 1998, paras. 498–499; for an overview of the case-law, Larissa van den Herik). This view is widely repeated in the literature, by reference among others to the preparatory works of the Genocide Convention (see among others W.A. Schabas, pp. 234–236). This reading has been used to explain why assimilationist policies, such as the Canadian Indian residential school system, do not fall under the Convention (although in the end, Canada’s House of Commons unanimously recognized the System as genocide); why many forms of ethnic cleansing—regardless of their brutality—are not treated as genocide; and why large-scale harm to civilians during wartime is often attributed to military objectives rather than to genocidal intent. The physical-biological reading operates as a doctrinal constraint, a kind of “containment mechanism”, preventing the overextension of the genocide label. But it also has the effect of rendering legally invisible certain forms of destruction that do not involve the immediate or deliberate killing of the group’s members.
The difficulty becomes obvious in relation to Article II(e) of the Genocide Convention, which criminalises the forcible transfer of children from one group to another. The transfer of children does not, in itself, physically destroy anyone. How, then, can this act be committed with an “intent to destroy the group”? What is the nature of the destruction at stake?
This is precisely the problem poignantly addressed by Judge Mohamed Shahabuddeen in his partially dissenting opinion in the Krstić appeal before the ICTY. His analysis, spanning paragraphs 45 to 54 of the opinion, is one of the most thoughtful attempts to grapple with the conceptual limits of the physical-biological paradigm. Shahabuddeen starts from the observation that, while the acts listed in Article 4(2) of the ICTY Statute (reproducing verbatim Article II of the Genocide Convention) are undeniably physical or biological in form, the Convention does not necessarily require that the corresponding intent to destroy target the group’s physical or biological existence. At paragraph 48, he draws a crucial distinction: the physical nature of the act does not predetermine the nature of the intended destruction. The definition of genocide specifies that some acts must aim at physical or biological destruction, such as imposing conditions of life calculated to bring about such destruction or measures intended to prevent births. But the absence of such qualifiers in other provisions, including killings and the transfer of children, suggests that the drafters did not intend to limit “destruction” to a physical dimension across the board.
He then reaches what I believe is the conceptual centre of his argument. At paragraph 50, Shahabuddeen observes that a protected group is not a biological organism but a social unit, held together by “characteristics—often intangible—binding together a collection of people as a social unit”. If these characteristics are intentionally dismantled through one of the listed acts, it is artificial to claim that such destruction is not genocide merely because the group’s members remain physically alive. The Convention protects the existence of the group as a social formation, and its destruction can therefore consist in the annihilation of the group’s capacity to function as such, even if physical lives are spared.
Shahabuddeen is careful to dispel any confusion with the notion of “cultural genocide”. At paragraph 53, he makes it clear that the destruction of culture alone is not genocide. But he also insists that the destruction of cultural or social structures may serve as evidence of an intent to destroy the group as such, provided this intent is connected to one of the enumerated acts. His final conclusion at paragraph 54 is both measured and decisive: the intent to destroy a group “is capable of being proved by evidence of an intent to cause the non-physical destruction of the group”, as long as a listed act is used to implement that intent.
This interpretive approach is also reflected in the position taken by a number of scholars, such as Elisa Novic and Kurt Mundorff, who argue that the intent to destroy may encompass forms of socio-cultural annihilation, and is not necessarily confined to physical or biological destruction. A similar understanding has occasionally surfaced in national case law, most notably in Germany. In Jorgić (12 December 2000), the Federal Constitutional Court upheld the interpretation adopted by the courts of first and second instance, namely that the intent to destroy refers to the destruction of the group as such, and not solely to its physical or biological elimination. The European Court of Human Rights, when later reviewing the same case, found this interpretation of the term destroy not unreasonable (para. 105). What underpins this line of reasoning is a conceptual distinction between the physical character of the underlying acts and the nature of the destruction that the perpetrator ultimately seeks to achieve. It acknowledges that genocidal projects may unfold not only through killing, but also through the systematic dismantling of a group’s identity, family structures, and cultural continuity. It is precisely this form of destruction that the Swedish courts also identified in the Yazidi case.
The District Court had already observed that ISIS’s treatment of Yazidis involved both their physical elimination and their social eradication. The Court of Appeal (pp. 7–8) confirmed this reading, noting that the assault on the Yazidi religious group formed part of a systematic effort to eliminate the group “in whole or in part”. More importantly for present purposes, the Court of Appeal emphasised that ISIS sought to destroy the Yazidis as a group, not only through killings and enslavement, but also through their absorption into ISIS households, the forced abandonment of Yazidi faith and language, and the reconfiguration of children’s identities (pp. 14–17; 20–21). The transfer of Yazidi children into ISIS families was not an incidental by-product of ISIS’s military operations; it was a deliberate strategy aimed at extinguishing the group’s ability to reproduce itself socially and culturally.
Seen in this light, the Swedish judgment makes perfect sense. It recognises that genocide can be committed even where no killing occurs, provided that the act falls within the enumerated acts and the intention is to destroy the group as a social formation. Far from expanding the Convention, this interpretation is faithful to its structure: Article II(e)—concerning the act of forcibly transferring children from a group to another group—exists precisely to capture the destruction of a group through the absorption of its children into another identity. What the Swedish courts have done is to give full effect to this provision, in a factual context in which the destruction of the group was pursued both physically and socially.
The Lina Ishaq case therefore illustrates how national courts, applying their own genocide legislation, can contribute to a more nuanced and accurate understanding of what “intent to destroy” might mean in practice. It resonates deeply with Shahabuddeen’s insight that a group exists through its social bonds, and that its destruction can occur through the systematic dismantling of those bonds. In the Yazidi case, genocide was not only in the mass killings and enslavement; it was also in the forced conversion, the suppression of Yazidi language and religion, the dissolution of family structures, and the absorption of children into ISIS households. This is a form of destruction that leaves bodies alive but destroys the group all the same.
And perhaps this is the most painful lesson of the Swedish case: genocide can be committed without bloodshed, through the deliberate erasure of identity and the destruction of the social fabric that allows a group to exist. The law, if interpreted with clarity and courage, is capable of recognising that.
@ 2025 EJIL:Talk!
Comments