Natalie von Wistinghausen on prosecuting the Yazidi genocide

Natalie von Wistinghausen is a lawyer specialised in international criminal law. Initially specialized in defense, she has worked at the International Criminal Tribunal for Rwanda (ICTR) and is Counsel at the International Criminal Court (ICC), the Kosovo Specialist Chambers (KSC), the Special Tribunal for Lebanon (STL) and the International Residual Mechanism for Criminal Tribunals (MICT). Since 2019 she has been representing four Yazidi victims in universal jurisdiction trials against alleged ISIS members in front of German courts.

The interview as conducted by Léa Franchisteguy, Justine Lager, Tacéo Lenfant et Louisa Ustachakowski.

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The interview was conducted in May 2025 and has been edited for clarity.

You represented one of the victims in the Taha al-J. trial, alongside your colleagues. This was the first trial world-wide in which a perpetrator was convicted of genocide against the Yazidi community. Could you tell us more about how you became involved in that case and what your specific role was in representing the victim?

The Taha al-J. case started by a case against his ex-wife Jennifer W. She was prosecuted before the Higher Regional Court in Munich and it was only in the course of her trial that Taha - and I will just use his first name - was arrested in Greece and extradited to Frankfurt. His trial took place before the High Regional Court in Frankfurt.

We had two parallel trials with the same allegations and the same facts. In both cases, we represented the victim, who was actually the only factual witness in the case. It was very interesting to observe how things can develop very differently from one courtroom to another, depending on the parties and participants involved and the dynamics. In parts we got different legal reasoning from the Higher Regional Court in Frankfurt and the Higher Regional Court in Munich.

This is how it all started with the representation of our client in the Jennifer W. case. Later, her husband [Taha al-J.] was arrested and our client joined as a “participating victim”, which we call a “joint plaintiff” [Nebenklägerin] in Germany. Joint plaintiffs in German criminal proceedings play a very different role than before the international tribunals.

The contact to our client was established through an NGO called Yazda, an NGO that is very active in Iraq. Yazda’s legal counsel was Amal Clooney and we started to represent the victim together. As these cases were brought before a German court, Amal Clooney was looking for a German criminal lawyer with some experience in the field and this is how we started to represent the victims together.

How exactly are victims involved in trials in Germany concerning international crimes? You mentioned that they can join the proceedings as joint plaintiffs. What rights does that give them, and how does their role differ from that of regular witnesses?

I would say – and maybe that is also my defense background and other victim’s lawyers may say differently – that before German courts, victims actually have a lot of rights, quite strong rights. Especially if I compare it to the rights of victims before the ICC, where they are only allowed to present their views and concerns.

Before a German court, a victim who participates in the proceedings is called a “joint plaintiff” and basically has the same rights as the accused. Of course, completely different perspectives, but as a joint plaintiff you can be present during every hearing, represented by counsel, file any request that is reasonable and within the framework of the law. You can even ask for the recusal of the judges. Your counsel can ask questions to the witness. You can make an opening statement; you can make a closing statement. The procedural rights are actually very strong. Joint plaintiffs can even ask for charges to be added to the indictment, which we did in the Yazidi cases and were successful in adding to the charges the religious and gender-based persecution of the Yazidi, which of course was a very important aspect for our clients. In a nutshell, victims' rights are quite strong, but then, it depends on the individual client, on what they want you to do or how much they want to get involved themselves.

What is for sure is that they will testify viva voce in the courtroom without protective measures, which is very different compared to the ICC. It is only under very limited circumstances that you can ask for the accused to be outside of the courtroom during testimony and that has never happened in any of the Yazidi cases.

I have to say that the women we represented, even though it was very hard for them to give this testimony, were all very strong. I think that this confrontation in the courtroom with the accused was also very important for them and they mastered it very well. There as well is a big difference with international tribunals. The system of protective measures is not all the same. And of course, it is decided on a case-by-case basis.

Were the victims you represented present during the pre-trial phases, or only once the main hearings began?

We do not have hearings in the pre-trial phase in Germany. Victims we represented became involved in the trial phase, or sometimes in the phase prior to the trial, but not during the investigation phase.

Our client in the Taha case was only found, after the indictment was public. It is actually by pure coincidence: a lady who works for Yazda and who was monitoring what is going on worldwide in Yazidi cases got aware of the indictment against Jennifer W, who is Taha’s ex-wife. When the Yazda employee read the details of what had happened to a Yazidi woman and her child, she remembered an interview she herself had conducted with a Yazidi survivor in a camp in Iraq.

Yazda does that a lot, they not only give support to survivors, but they also do very important documentation work by interviewing women who are coming back from imprisonment and who are giving an account of what has happened to them, not in the sense of a formal testimony, but more like an interview, asking: ‘What do you want to tell me?’

There was this story of my client who with her five-year-old daughter was held as a slave in the household of Taha and his wife. And under very sad and cruel circumstances, this five year-old child died of thirst in Taha’s household. Even though every single story that happened to Yazidi survivors is terrible, this is a story that has stuck to the mind of this lady who worked for Yazda and she recognized the story. Then it is like a piece of the jigsaw we put together.

The German federal prosecutor was not aware of the victim. They had not identified the person. They were just basing themselves on something that Jennifer W. had said. Yazda found the victim [Natalie’s client] and she was brought to Germany and then interviewed by the prosecutor. After the indictment was filed, she became a “joint plaintiff”, or an “accessory prosecutor” as the German law says. She then got in the witness protection program and she came to Germany together with her son, the only survivor in her family. She lost her little daughter. She lost the other son, and she lost her husband.

Are the linguistic and socio-cultural gaps between the Yazidi community and the German legal system addressed by the judiciary, for example through interpreters or other support mechanisms?

We need interpreters for the work we are doing, and the prosecutor in the courts do too. This is something that is very common for national courts. It is not only in international cases that you need interpretations. That is provided for from minute one.

Sometimes you have issues with different dialects. I had to learn that Kurdish is not the same in Kurmanji and even Kurmanji and the language the Yazidi speak are different accents. There were a bit of interpretation issues at the beginning of the trial. I was very grateful to have Yazidis sitting in the public gallery who I had met before and who could make me aware of that [language issues] because I obviously do not speak Kurmanji so I could not tell. But I think that we slowly put up quite a good system and now we know interpreters who are familiar with the dialects.

The interpreters, at the end of the day, spend a lot of time time with the victims during pauses etc. They even come a bit earlier in the morning, before the hearing starts, as a way for them to speak their mother tongue. There is also - I would not say relationship because of course they have to stay completely professional - their presence that is sometimes the only presence of a person who speaks their mother tongue and that is something very comforting [for the victims]. You may have witness protection officers or lawyers present but it is not the same when you can speak in your mother tongue.

Then we have two clients who are in a witness protection program, through which they get assistance: one from the federal police the other one from the regional police. This is more in day-to-day questions – medical, schooling of the child, or their own education, learning German... They get some support there.

We also have the possibility in German law of having a person who is giving so-called “psychosocial trial support” during the hearings. I would say that whether it is necessary really depends on the victim. My experience is that if you have an interpreter who has a good relationship with a victim, it can even be too much to have another person present. But this other person of course is a psychologist, which an interpreter obviously is not. And I am also not [a psychologist] as a lawyer. I have compassion and sympathy for my clients. That is obvious. Otherwise, I would not be involved in this kind of work.

I think it is very important to keep in mind that every victim is very different and that they have different needs and that must be discussed with them. It is not for us to impose and to know better what is the best way to assist.

You touched on an important point because the whole sociocultural context our clients are coming from is in the beginning something that most of the persons in the courtroom are completely unfamiliar with. I have heard many times, for instance, German judges say: ‘Look, it is not because it is a trial involving international crimes that we are going to deal with it in a different fashion than we deal with any other case. It is not the first time we have people who do not speak German and where the context is multicultural.’ They supposedly have the experience how to deal with that. My personal observation is that it very much depends on the persons involved, be it the judges, prosecutors and lawyers and everyone involved.

To the broader issue of universal jurisdiction itself, where trials take place far from the places where the crimes occurred. In the Taha al-J. trial, socio-cultural differences became apparent, such as difficulties with time references or with victims finding the language to describe sexual violence in a way that the court understands. Could you speak more about how these challenges were handled during the proceedings?

You can not put all the trials and the victims who we represented in one basket. It was really very different from one person to another. If we take the Taha trial, because that is the most prominent one we have seen, the first genocide trial, we had a client who was very traumatized and who did not have much education - in the sense of school education - and who had some difficulties in articulating herself. It took the judges quite some time to adapt to the pace of the responses she was giving and sometimes also contradictions in what she was saying, which were based on misunderstandings.

For example regarding the times of the events: os it at 10 in the morning or in the evening? That was very difficult for her to tell. First of all, the events took place years ago; secondly, it was a terribly traumatizing event; thirdly, the victim at the time did not look at her watch. She did not even have a watch. She could only orient herself by where the sun was standing, and a kind of feeling time. I remember questioning her, I do not remember in detail, but I tried to figure out for her: Did it take as long as you have been sitting here this morning while we are questioning you? And through this way of questioning you could get a bit closer to a question of time, for example.

All our clients suffered sexual violence, but here again, the stories were very different. The victim we represented in the Taha case had experienced sexual violence, but not in Taha’s household and not through him. It would have been wrong to address that with her in detail because it just was not part of the charges. She mentioned it in the way of saying like ‘terrible things happened to me there’. But then the judges would not go into the details, and it would have been, in my view, inappropriate.

In another trial, with another client who has a memory like an elephant, very very self- confident and really relevant, every single detail she was very outspoken about. That is a trial that was not public because the accused was minor. She was underage during the events. According to German criminal procedure, when the accused was underage during the events, the trial is not public. So there is not so much I can say about that specific trial. But I can tell you that rapes and other sexual assaults were discussed very much in detail. My client really wanted to talk about it, and she was not afraid of giving the details that unfortunately judges need to be able to convict for a sexual assault.

In that trial, for the first time the accused was convicted for aiding and abetting sexual assault as a crime against humanity because she was in the household of her husband who regularly raped and sexually assaulted the victim. She did not do anything about it. She perpetuated her deprivation of liberty. She had the control over her being in the house, even though she knew her husband would assault her. There were also allegations of things such as the women giving the victims a nice dress, doging her hair or giving her makeup. We have had in two or even three trials a conviction for aiding and abetting sexual assault as a crime against humanity.

I think it is worth mentioning because what maybe many people do not know is that out of the nine trials we had in Germany, eight were against women, female accused. This is why the whole question of the prosecution of sexual crimes has another aspect. In the Taha trial, which was the only trial against a man, there was no allegation of sexual assault against him.

Taha faced numerous charges and was ultimately convicted on several counts, including genocide, war crimes, and crimes against humanity. How does that work in the German legal system? What impact does having so many different charges have on the victims and on the trial process itself?

I would say that for lawyers it is a completely normal thing that you have in many trials, not only those involving international crimes. What you need to know is that the trials - the so-called Yazidi trials, ISIS trials - all started off with the allegation of membership in a foreign terrorist organization. In the office of the prosecutor general, first it was the section dealing with terrorism who was prosecuting these crimes. It is only when the Yazidi, their role, their story, and the international crimes committed against them became known, that the section for the prosecution of international crimes became involved and that the focus on international crimes increased.

Indeed, you had the membership in a terrorist organization, you had genocide, you had several crimes against humanity like enslavement, torture, causing serious mental and bodily harm, severe deprivation of liberty, war crimes like cruel and inhumane treatment, and you had aiding and abetting the forcible transfer of victims, and then you had crimes according to the German criminal code, not the Code of Crimes Against International Law, like men slaughter, and murder and serious bodily harm with the consequence of death because the daughter of our client died in the house.

The court in Frankfurt qualified the death of the child differently than the court in Munich. But at the end of the day, you had a cumulative prosecution of these crimes. It is not a problem under the law, but what has happened in quite a few trials is that charges were dropped, either in the course of the proceedings or at the end of the proceedings. The German Code of Criminal Procedure says that charges can be dropped. For example, the membership in a foreign terrorist organization, which is a very serious allegation. Or even, what we had in the Jennifer W. case, the crime of aiding and abetting genocide could be dropped if the court says that the expected sentence is not particularly significant when compared to the sentence expected for the commission of the other crimes. That sounds very strange, and it also feels very strange when we speak about international crimes, right? Because you could say, how is this not severe enough? But at the end of the day, it is a bit of a procedural, also strategic approach. It focuses maybe on what the judges consider to be the most serious allegation but also those who are the easiest to prove.

There has been a change in the law very recently, which is good. Because when these situations happened in the Taha-case and in the Jennifer-case, I, as a victim’s lawyer, and my colleagues, did not have a say in that [the dropping of charges]. It was a decision taken between the judges and the prosecutors. The judges or the prosecutors suggest this procedural approach. If they agree, it happens. I have got nothing to say. I can tell you that it was not easy to swallow when the charges of aiding and abetting genocide, for example, were dropped in the Jennifer case in Munich. There has been a very important change in the law last year in Germany. Now the court will need the victim’s lawyer’s agreement to drop a charge. That of course is a significant progress.

Your question was: How does it affect the victims? And that is of course a completely different question. I have to admit that it depends on the client, but I would not share all these procedural details with every client. It really depends. Some want to know everything. Others say: ‘Look, I trust you, you know what’s right for me, you’re the lawyer. I do not understand the legal intricacies of what is going on.’ Of course, they have an idea of what they are expecting from the trial. If I told them, do you agree to drop this charge or that? That is not a very realistic approach in most of the cases. It really depends.

For the trial in Frankfurt, the Taha trial, the focus also for my client, and actually for the whole Yazidi community, was the charge of the genocide. The focus was really that. But when I explained to our clients, for example, why we were asking for the charge of the religious and gender-based persecution to be added to the charges, that is of course something they were very interested in because it went directly to their identity being a woman, being a Yazidi, the core reason for being persecuted by ISIS. That is a charge that they would be interested in to be reflected in a judgment. And at the time, we did not know if the judges would decide or would convict the accused for genocide. If that had not happened, at least you would have had the religious and gender-based persecution rooted in a conviction as a crime against humanity.

Again, the approach of the different courts was very different. The trial chamber that convicted Taha refused to prosecute for religious and gender-based persecution. The court in Munich against Jennifer W. accepted it but dropped the charge at the end of the trial. And I had no say in this. […] There is not only a development in jurisprudence but also from one trial chamber to another the views can be very different. This approach of dropping charges is a kind of rationalization of a trial that does npt feel right. But that is the practice, that is what constantly happens in courtrooms. It can be a case of any type. If the judges realize that we can prove ten of the charges but maybe not twenty-five, they will focus on the ten and drop the fifteen. They do the same in these types of cases, which may feel very different given the circumstances and the atrocities we are talking about.

What are your personal thoughts on how the court approached the crime of genocide? It seems like a particularly complex and difficult charge to prove. What types of evidence or patterns of ISIS or Daesh conduct were used to establish genocidal intent?

I think we can all agree that it was not too difficult to establish the fact that the genocide against the Yazidi had happened. We know that a number of parliaments had already accepted it, the European parliament, the German parliament as well, but there had not ever been a judicial decision [before the Taha al-J. case].

We do not only need the fact that the genocide did happen, but we need the special intent of the accused. The establishment of the facts regarding the genocide is historical. The court heard several experts. It also based itself on interviews that federal investigators conducted with over a hundred Yazidi who live in Germany. There is a big Yazidi community in Germany, especially in southern Germany, because the land of Baden-Württemberg received more than a thousand Yazidi right after the genocide took place. There was a specific contingent where they offered asylum to a lot of families. I think that is also one of the reasons why we probably have that many Yazidi cases here in Germany. In any event, the federal investigator interviewed more than a hundred Yazidi about historical events, what had happened, when, what had happened to them, their families etc. That established or the layer for the historical facts of genocide.

The trial chamber said that Taha, by causing significant physical and mental harm to the victims, my client and her daughter, acted according to the ISIS ideology. He was a member of ISIS. The ideology was to destroy the Yazidi people and their religion. It is enough under German law to establish the special intent to commit genocide, which was the interim goal. The final goal of ISIS was the creation a caliphate. The persecution of the Yazidi people is just one step of getting there. But that, under German jurisprudence, is enough to establish the special intent to commit genocide, even though it is only an interim step to achieve a final goal.

How did it materialize, this ISIS ideology? Of course, the killing of men, the separation of women and children, the enslavement of women, the sexual assaults and all the implications it has within the Yazidi community, the destruction of cultural heritage and so on and so forth.

[…] Then there was also some documentation, open-source material, ISIS material, an online magazine that reflected religious justification for the persecution of Yazidi people, where it was really written black and white. There was also, for example, a document with a Q&A regarding the rules of enslavement, prices for slaves and the rights you had, the do’s and don’ts, what can you do with the slave, what are you allowed to do, like sexual instances that you are allowed.

These elements are the ones that the German courts used in all trials to justify the intent to commit a genocide. You could basically say if you are a member of ISIS and you adhere to the ideology, the persecution of the Yazidi people is something that you know about and that is part of what you are trying to achieve, which is again the creation of a caliphate.

Being an observer of national and international trials, I would say that the threshold for conviction for genocide is much higher at the international tribunals than before, at least my jurisdiction [the German jurisdiction].

Let’s not forget the only factual witness they had in this trial was our client. They heard some other witnesses like people who had worked for Yazda, or experts, but no one else could tell what had actually happened in Taha’s and Jennifer’s house. Taha did not speak during the trial, but Jennifer W. did. She gave a lot of details, of course she contradicted a lot of what our client said, but she didn’t say, ‘I don’t know this woman’. She accepted that they had been slaves in her household, but she put it all on her ex-husband, saying: ‘There was nothing we could do. Eventually, we treated them fairly.’

We are also interested in the role of affected communities and how they perceive these criminal trials. For instance, issues like linguistic barriers have been highlighted. How does the German justice system handle inclusion, participation and outreach to these communities? Specifically, how accessible are the proceedings, for example thinking about translation for observers in the public gallery, or efforts to record and preserve the trial for access after it concludes?

It is a question I get quite often, and it just does not happen. There is no outreach. There is no interpretation for those sitting in the public gallery. But there have been some changes in law there as well. These are lessons learned from Syrian trials, the trial before the Higher Regional Court of Koblenz, because there were lots of issues around translation and involvement of civil society.

Obviously, these trials are of huge importance to the community but most of the time they do not even know anything about these trials. Because quite a lot of Yezidis live in Germany, we had in the public gallery some representatives of the Yezidi community but not very many, and I am quite sure that across the borders there’s not much knowledge about these trials. An NGO like Yazda will know about it and they supported us very much behind the scenes with logistics.

There is not much knowledge about these cases, but for those who know, it means a lot. The main reason, from what I heard from our clients, is that they wish to tell the world what has happened to them. To secure justice and accountability. It is more that they want the people to know what has happened to them and they want it never to happen again. And only at the second level they will talk about themselves and say 'I want justice for myself, for my family, maybe compensation, if possible, some kind of support'. But that is, at least in my experience, much more in the background than the big picture. They will say 'this is what has happened to us as a people, the world has to know and it should not happen again'. I mean, unfortunately, we see that history somehow repeats itself constantly.

On the other hand, they are also very critical because they say that it is nice to have had these few trials but they are hundreds and thousands who have suffered and there should be many more trials.

Sometimes they feel that for some time there was the focus on the Yazidi trials, but then, given other historical developments in other situations or countries, the focus shifts elsewhere and they feel forgotten again.

I think there is a lot that can be done for a better outreach. What I hear from the courts, from the judges, is that they say this is not their role. I do not see it happen that a Higher Regional Court will have an outreach section like the ICC has. That is just not going to happen because the resources are not there.

We will now have translation of important so-called historical judgments. There will be better availability of translation for people sitting in the public gallery, for instance journalists. I think that people are getting more aware of the importance of these trials across the courthouse, but also across the borders, because obviously the majority of the affected community is in Germany.

If it is going to work out [the 2024 reform of the German law], I do not know, let’s see. These changes in law are very recent. Let’s see how possible it is to implement it. I know we are a rich country but somehow for these things we do not have any resources and those who are not German will be astonished to learn that we have no recordings of criminal proceedings, we have no transcripts of the spoken words during such important trials. It is my notes, prosecutor’s notes, the judge’s notes, or the notes of someone sitting in the public gallery – even though they most of the time are not even allowed to take notes unless they are a journalist. It is really like medieval times.

The bar associations have been fighting for decades, not only for these types of trials, for every trial. Imagine a murder trial and there is no recording or no transcript of what is being said. That is a very serious problem.

Until now, even though we were very close to it with the former government, it was not possible to pass that law. Interestingly enough the main opposition comes from the judges, from the judiciary itself. I leave it to you to reflect on why this is the case. The bar associations, I can tell you, are certainly pushing for it for a very, very long time.

I find it fascinating how NGOs stepped in to produce and publish trial transcripts, often in multiple languages, to make them accessible to affected communities. It will be equally interesting to see how last year’s legal reform will influence future practice – especially since, as far as I understand, no universal jurisdiction trial in Germany has been officially recorded so far. It remains to be seen how this will be implemented in practice.

In one of the trials, the judges did record the proceedings, but only for them to make their work easier. They would not even share it with us. I think that, in the future, we will not have this law pass anytime soon, with the new government we have. But we will continue with this: taking of notes and civil society will continue to play a big role there if we talk about international trials and we will need these NGOs to do these transcripts.

However, we are all human beings. When I say something or a witness says something, it goes to your brain and then to your hand and then you write it. I can tell you that notes can be very different from one party or participant to another in the courtroom. This is a discussion we had so many times amongst lawyers, prosecutors and the judges. What did the witness say? No, the witness said this. No, my notes say the witness say that. My notes say this. It is absurd. But this is what happens, and this is why, as much as I support the idea of transcribing everything that has happened through, for instance, NGOs, if no one else does it, we always have to be very cautious that there is a filter there. We all put on our own glasses, of course unconsciously sometimes. And that is why it is just not the same.

We just need a recording, a basic recording. […] But the fear is that it will influence the proceeding, also the witnesses, who may be intimidated. I d no’t have a clear view and a solution to all of that. I am just sharing my observations and I think it is very important to have your antennas everywhere, especially if you are interested in the victim’s perspective of things – that doesn’t go without looking from all side. Again, it is very important not to have these general assessments of victims’ communities, what they want and what they feel and what they are aiming at. You really have to look at the individual and ideally to work with victims to make this experience for yourself.

Looking ahead – especially in light of the fall of the Assad regime on 8th December last December – what role do you think German universal jurisdiction trials, such as those concerning the Yazidi genocide, could play in future justice processes in Syria?

I do not claim to be an expert regarding Syria. I have represented Syrian victims and together with NGOs we have filed criminal complaints regarding the chemical attacks in Ghouta and Khan Shaykhun, but I have not been in Syria since the fall of the regime, and it just has not been the focus of my work that much during the last years, so I find it very difficult to tell.

I would say that generally, the aim here for Syrians and the Syrian community is that ideally there would be accountability for the horrible crimes committed and trials would take place in Syria. Is that realistic? Yes, or no? From my understanding, the Syrian judiciary is very weak at the moment. I just can not tell if it will be possible also with the help of the international legal community to assist the Syrians to set up their own tribunals and the people who allegedly committed the very serious crimes. The IIIM can support, there is some communication already and the head of the IIIM has been to Damascus, for instance.

If we put it into a more general context, I think that we all agree that ideally these trials should take place in the countries where the crimes were committed, be it in Iraq or Syria. But do we have a special tribunal for the crimes committed by ISIS? We do not. And is there the political will to establish such a court? I do not think so. Unfortunately, we know that the prosecution of crimes and the mechanisms that are set up are very much dependent on political developments and the moment in the world and there’s a big lack of stability and a movement of powers. We are facing difficult times.

Experience also shows that all of this takes time. How long has it taken to prosecute the crimes committed during the war in former Yugoslavia? Or how long has it taken to prosecute the crimes committed during the Rwandan genocide? There are still ongoing trials. If you look at the situation that the ICC deals with, in the Darfur case for example, the events happened 20 years ago and now we have a new conflict.

Sometimes you have these very surprising developments, for example, from one day to another former President Duterte being arrested in the Philippines, which no one had really expected, and being in The Hague the next day. Karadjic has been arrested 20 years after the events. Today, maybe the arrest warrants against Putin look like something completely unrealistic to ever be brought to trial but who knows if there is a change of regime one day in Russia or any other of the countries that the ICC is dealing with? Often you suddenly have a complete shift of dynamics and I think this is what is currently going on in Syria. But how long is it going to take? I do not know.

At the same time now a lot of people from the Alevi community are being persecuted and a lot of crimes are allegedly being committed as we speak, so it is probably very early to tell. I think that every Syrian you will ask will wish to have these kinds of trials happen in their country. Of course, many of them want to go back to Syria and to help to reconstruct the country, but it is probably still too early.