What If War Crimes Were Never Prosecuted?

The Actual History

The concept of war crimes—violations of the customs or laws of war—has evolved over centuries, but systematic prosecution of such crimes is largely a development of the 20th century. Prior to the 20th century, there were occasional trials for violations of the laws of war, but these were exceptional rather than systemic. The Hague Conventions of 1899 and 1907 represented early attempts to codify rules of warfare, though they lacked robust enforcement mechanisms.

The watershed moment for war crimes prosecution came in the aftermath of World War II. The Holocaust and other Nazi atrocities, along with Japanese war crimes in Asia, were so shocking in their scale and brutality that Allied powers determined perpetrators must face justice. This led to the establishment of the International Military Tribunal at Nuremberg (1945-1946) and the International Military Tribunal for the Far East in Tokyo (1946-1948).

The Nuremberg Trials tried 24 major Nazi leaders for crimes against peace, war crimes, and the newly defined "crimes against humanity." The legal principles established at Nuremberg were groundbreaking—notably that individuals could be held responsible for international crimes, regardless of whether they were following orders, and that certain crimes were so egregious they transcended national sovereignty. The United Nations General Assembly affirmed the "Nuremberg Principles" in 1946, embedding them in international law.

Following these trials, the Geneva Conventions of 1949 expanded protections for war victims and further codified war crimes. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide specifically criminalized genocidal acts.

Despite these advances, the Cold War largely froze progress in international criminal justice for decades. The bipolar world order made UN Security Council consensus nearly impossible, and neither superpower wanted its actions or those of its allies scrutinized too closely.

The post-Cold War era saw renewed momentum. Following atrocities in Yugoslavia and Rwanda in the 1990s, the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994. These ad hoc tribunals prosecuted numerous perpetrators of genocide, crimes against humanity, and war crimes.

The culmination of this evolution was the 1998 Rome Statute, which established the International Criminal Court (ICC) as a permanent body to prosecute genocide, crimes against humanity, war crimes, and the crime of aggression. The ICC began operating in 2002 and has since investigated and prosecuted cases primarily in Africa, though its jurisdiction has expanded to other regions.

Additionally, various "hybrid" tribunals combining international and domestic elements have addressed crimes in Sierra Leone, Cambodia, Lebanon, and elsewhere. At the national level, countries have increasingly prosecuted war crimes under universal jurisdiction principles or through specialized domestic mechanisms.

Despite significant progress, war crimes prosecution remains challenging and inconsistent. Major powers like the United States, Russia, and China have refused to join the ICC, creating accountability gaps. Political considerations often determine which crimes receive attention. Resources for investigations are limited. Nevertheless, the expectation that war crimes should be prosecuted has become a cornerstone of the international legal order by 2025.

The Point of Divergence

What if war crimes were never prosecuted? In this alternate timeline, we explore a scenario where the international community failed to establish mechanisms for holding perpetrators of war crimes accountable, fundamentally altering the development of international law and human rights protections.

The critical point of divergence occurs in 1945, as World War II concludes. While many factors could have prevented the emergence of war crimes tribunals, we can identify several plausible scenarios:

First, the Allied powers might have opted for summary execution of Nazi leaders rather than formal trials. This approach had influential advocates, including Winston Churchill, who initially preferred executing Nazi leaders without trial. In our timeline, the American insistence on legal proceedings (championed by Secretary of War Henry Stimson and Supreme Court Justice Robert Jackson) prevailed. In this alternate timeline, Churchill's position gains broader support, particularly after Stalin expresses agreement during the Yalta Conference.

A second possibility involves the structure of the trials themselves. In this scenario, the Allies attempt to organize tribunals, but fundamental disagreements about legal procedures, jurisdictional questions, and the retroactive application of new legal principles cause the process to collapse. Soviet insistence on show trials clashes with American and British commitment to due process, ultimately making the Nuremberg proceedings untenable.

A third pathway involves changed political calculations. As tensions between the Western Allies and the Soviet Union rapidly intensify in 1945, strategic priorities shift. Both sides become concerned that war crimes trials might either implicate their own personnel or limit future military options. Simultaneously, in the Pacific theater, American authorities might have calculated that prosecuting Emperor Hirohito would make the occupation of Japan unmanageable, and subsequently extended this pragmatic approach to other Japanese officials.

Finally, the divergence might stem from changed public attitudes. In this scenario, a war-weary public across Allied nations, focused on rebuilding and moving forward, shows little appetite for prolonged, expensive trials of defeated enemies. Politicians, responding to public sentiment, abandon plans for systematic prosecution.

The result, regardless of the specific mechanism, is that neither the Nuremberg Trials nor the Tokyo Tribunal ever materializes as formalized judicial proceedings. Instead, some Nazi and Japanese leaders face execution without trial, while others receive amnesty in exchange for cooperation or scientific knowledge. This absence of formal judicial reckoning becomes the foundation for an alternate international legal order.

Immediate Aftermath

Post-War Legal Developments (1945-1950)

The absence of war crimes tribunals immediately altered the legal landscape emerging from World War II. Without the Nuremberg and Tokyo precedents, the legal concept that individuals could be held accountable for international crimes regardless of state orders never gained formal judicial recognition. This created a fundamentally different foundation for post-war international law.

The United Nations Charter, signed in June 1945, still established the organization, but its approach to human rights took a different trajectory. Without the moral and legal momentum generated by the war crimes trials, the Universal Declaration of Human Rights (adopted in our timeline in 1948) faced greater opposition and emerged in a significantly watered-down form, emphasizing state sovereignty over individual rights.

The 1948 Genocide Convention similarly struggled. Without the vivid legal accounting of Nazi atrocities through the Nuremberg proceedings, the push to categorize genocide as a distinct international crime lost crucial momentum. Though eventually passed, the convention lacked enforcement mechanisms and was ratified by far fewer nations than in our timeline.

The 1949 Geneva Conventions still codified protections for war victims, but without recent precedents for enforcing violations, they remained largely aspirational. The critical provisions establishing universal jurisdiction for "grave breaches" were either absent or substantially weakened.

Denazification and Democratization (1945-1955)

In occupied Germany, denazification took a dramatically different course. Without public trials documenting Nazi crimes, Allied occupation authorities faced greater challenges in convincing German citizens of the regime's criminality. Many Germans viewed the summary executions of Nazi leaders as victor's justice rather than the consequence of genuine wrongdoing.

This perception complicated democratization efforts. Nazi ideology persisted more openly in certain segments of society, with former Nazi officials more readily reintegrating into public life. While Germany still eventually established democratic institutions, the process took longer and resulted in a democracy with less robust safeguards against extremism.

In Japan, the consequences were equally significant. Emperor Hirohito remained more firmly in power without facing any accountability, and many Japanese military leaders who would have been prosecuted instead retained positions of influence. This hampered Japan's acknowledgment of wartime atrocities, particularly those committed in China and Korea, poisoning regional relationships for decades to come.

Impact on Occupation Policies (1945-1952)

Without the normative framework established by war crimes trials, occupation policies in both Germany and Japan emphasized pragmatic control rather than justice or accountability. In Germany, this meant earlier rehabilitation of former Nazis with technical expertise or administrative experience. In Japan, it meant greater continuity between the wartime regime and post-war administration.

The Cold War's rapid intensification accelerated this trend. By 1947, both American and Soviet occupation authorities were focused almost exclusively on securing their respective zones against the other's influence. Former Nazis and Japanese militarists found themselves recruited into intelligence services, scientific research, and governance based on anti-communist credentials rather than their wartime conduct.

Effects on Post-Colonial Conflicts (1947-1960)

The absence of war crimes prosecutions had immediate impacts beyond Europe and Japan. As European colonial empires disintegrated in the aftermath of World War II, conflicts erupted across Asia and Africa. Without the Nuremberg precedent establishing that certain tactics were unacceptable regardless of military necessity, colonial powers employed increasingly brutal methods to maintain control.

In the French war in Indochina (1946-1954) and later Algeria (1954-1962), tactics like torture, collective punishment, and forced relocation were employed more extensively and openly. Similarly, British actions in Malaya, Kenya, and other colonies involved human rights abuses that went unchallenged by international legal standards.

These conflicts established dangerous precedents. Without the deterrent effect of potential prosecution, military leaders calculated that any tactic was permissible if it achieved strategic objectives. This logic permeated military doctrines worldwide, elevating effectiveness over humanitarian considerations.

Early Cold War Confrontations (1950-1960)

The Korean War (1950-1953) became the first major testing ground for warfare in this alternate post-WW2 international system. All sides—North Korean, Chinese, South Korean, and American—committed actions that would constitute war crimes in our timeline, from mass execution of civilians to mistreatment of prisoners of war. Without international legal mechanisms or norms to constrain or condemn such conduct, these practices became more normalized in military operations.

The pattern repeated in conflicts worldwide. The 1956 Soviet intervention in Hungary, anti-colonial struggles in Africa, and Cold War proxy conflicts all demonstrated a significant degradation of constraints on military conduct. The absence of potential legal consequences for leaders ordering atrocities removed a crucial deterrent, making tactical decisions purely matters of military and political calculation rather than legal or moral consideration.

Long-term Impact

Evolution of International Law (1960s-1990s)

By the 1960s, the absence of war crimes prosecution mechanisms had fundamentally altered the trajectory of international law. The principle of state sovereignty remained nearly absolute, with few recognized limitations related to human rights or humanitarian protections.

The Vienna Convention on the Law of Treaties (1969) and other foundational documents of international law placed greater emphasis on state consent and non-interference than in our timeline. The concept of jus cogens norms (non-derogable principles from which no state may deviate) developed more narrowly, excluding many human rights protections.

International organizations reflected this different legal paradigm. The United Nations continued to function primarily as a forum for inter-state diplomacy rather than evolving additional roles in human rights protection or civilian security. Various proposals for international criminal accountability mechanisms throughout the Cold War failed to gain traction.

Treaty law developed along a different path as well:

Human Rights Conventions: The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (both adopted in 1966 in our timeline) were significantly delayed and watered down, emphasizing state implementation discretion over individual rights.
Laws of Armed Conflict: The 1977 Additional Protocols to the Geneva Conventions either never materialized or emerged with substantially weaker protections for civilians and combatants alike.
Torture Convention: The 1984 Convention Against Torture contained extensive reservations and lacked enforcement mechanisms, rendering it largely symbolic.

Major Conflicts (1960s-2000s)

Without the deterrent effect of potential prosecution, conflicts throughout this period exhibited higher levels of civilian targeting and other practices that would constitute war crimes:

Vietnam War (1955-1975)

Both American forces and North Vietnamese/Viet Cong engaged in targeting of civilians, torture, and other prohibited tactics at significantly higher rates than in our timeline. Incidents like the My Lai Massacre represented policy rather than aberration. While the war still generated controversy, the debate centered on strategic effectiveness rather than legality or morality of tactics employed.

Cambodia (1975-1979)

The Khmer Rouge genocide proceeded largely as in our timeline but with even less international response. Without established precedents for international intervention in mass atrocities, neighboring countries eventually intervened based solely on strategic interests rather than humanitarian concerns.

Yugoslav Wars (1991-2001)

The breakup of Yugoslavia unleashed ethnic cleansing campaigns that operated with even greater impunity. "Ethnic cleansing" became normalized as a military strategy, with Serbian, Croatian, and Bosniak forces all employing it systematically. Without the prospect of international tribunals (which in our timeline began operating in 1993), military and political leaders calculated that population transfers through violence were simply an effective means of securing territorial control.

Rwanda (1994)

The Rwandan genocide occurred with even less international response than in our timeline. The absence of any precedent for international accountability meant that genocide planners operated with the confident expectation of impunity. The death toll potentially exceeded the already catastrophic levels of our timeline.

Military Doctrine and Training (1960s-2020s)

Military doctrines worldwide evolved without incorporation of international humanitarian law constraints. Training programs focused exclusively on tactical effectiveness rather than legal limitations. This created armed forces skilled in achieving objectives but unconstrained by considerations of civilian protection or humane treatment of combatants.

Major military powers justified this approach as necessary in an anarchic international system. Counterinsurgency doctrines, in particular, emphasized population control through whatever means necessary rather than winning "hearts and minds" through more restrained approaches.

This shift was evident in military manuals and training protocols:

U.S. military field manuals emphasized "maximum force application" rather than "minimum necessary force"
Soviet and later Russian doctrine formalized the concept of using civilian targeting as a form of psychological warfare
Counterterrorism operations worldwide operated with fewer constraints on interrogation techniques and detention conditions

Media and Cultural Impact (1970s-2020s)

Without the normative foundation established by war crimes trials, media coverage of conflicts evolved differently. Reporting on civilian casualties and other atrocities was more likely to frame such events as inevitable aspects of war rather than legal or moral violations.

Entertainment media reflected and reinforced these different norms. War films and literature portrayed extreme tactics as necessary for victory rather than morally problematic. This cultural shift gradually normalized what would otherwise be seen as atrocities, shifting public expectations about warfare.

Human rights organizations still emerged but focused on documentation rather than accountability. Without legal mechanisms to leverage, groups like Amnesty International and Human Rights Watch operated primarily as research organizations with limited influence on state behavior.

Global Governance by 2025

By 2025 in this alternate timeline, the international system operates on fundamentally different principles:

Security Architecture

The United Nations Security Council functions purely as a great power coordination mechanism rather than occasionally acting on humanitarian grounds. Regional security organizations similarly prioritize state security over human security.

The concept of "Responsibility to Protect" (R2P) never emerged, with state sovereignty remaining inviolable regardless of how governments treat their populations. Humanitarian intervention is still practiced occasionally but is explicitly framed in terms of strategic interests rather than moral or legal obligations.

Refugee Crises

Conflict-driven displacement occurs at significantly higher rates due to the normalization of civilian targeting. However, international refugee protection is weaker, with the 1951 Refugee Convention being narrowly interpreted or ignored altogether.

Refugee camps have become semi-permanent features across multiple continents, with minimal international support and protection. By 2025, an estimated 200-300 million people globally live in displaced persons camps or informal settlements after fleeing conflicts.

Technologies of War

Without legal constraints on methods of warfare, weapons development followed a different trajectory. Chemical and biological weapons remained more integrated into major powers' arsenals, with ongoing refinement rather than elimination through the Chemical Weapons Convention (which never gained significant traction in this timeline).

Autonomous weapons systems developed more rapidly without preemptive legal frameworks limiting their deployment. By 2025, fully autonomous lethal systems operate in multiple conflict zones with minimal human oversight.

Corporate Accountability

Multinational corporations operating in conflict zones face no liability for complicity in atrocities. Resource extraction in unstable regions commonly involves arrangements with armed groups that include population displacement and forced labor.

The concept of corporate social responsibility developed primarily as a marketing strategy rather than a substantive ethical or legal framework. Environmental and human rights regulations remain primarily domestic matters with minimal international standardization.

Public Attitudes

Perhaps most significantly, public attitudes toward warfare have fundamentally shifted. The distinction between combatants and non-combatants has blurred in public consciousness. Military operations with high civilian casualties generate less outrage than in our timeline, as such outcomes are viewed as regrettable but inevitable aspects of conflict rather than illegal atrocities.

This normalization of extreme violence has corrosive effects on domestic politics as well, with political discourse becoming more accepting of dehumanizing language and policies toward various minority groups.

Expert Opinions

Dr. Elaine Montgomery, Professor of International Law at Columbia University, offers this perspective: "Without the Nuremberg precedent, international law would have developed along an entirely different trajectory. The revolutionary idea that emerged from those trials—that certain acts are so inherently wrong they constitute crimes regardless of domestic law or superior orders—fundamentally reconfigured the relationship between state sovereignty and individual rights. In a timeline where war crimes prosecutions never materialized, we would likely see a much more Westphalian international system, where state sovereignty remains virtually absolute and what happens within borders stays within borders. The concept of universal jurisdiction would be considered radical rather than established doctrine, and we would lack the legal architecture that currently enables prosecution of atrocities. Essentially, international law would remain primarily about regulating relations between states rather than protecting individuals from state power."

General Martin Holloway (Ret.), former military legal advisor and professor at the U.S. Army War College, provides a different analysis: "The absence of war crimes tribunals would have profoundly altered military conduct worldwide. Military organizations respond to incentives and constraints. Remove the constraint of potential legal liability, and decision-making calculus changes dramatically. In such a timeline, we would see military doctrines evolve to prioritize effectiveness over legality or morality. Tactics that deliberately target civilians, use prohibited weapons, or inflict unnecessary suffering would become normalized as strategic tools. Training programs would omit law of armed conflict modules entirely. While some commanders might still maintain restraint based on ethical considerations or strategic calculations about reprisals, the overall effect would be a significant degradation of humanitarian standards in warfare. By 2025, the distinction between combatants and non-combatants—a cornerstone of the laws of war—would likely have eroded to the point of meaninglessness in most conflicts."

Dr. Fatima Ndiaye, Director of the Center for Transitional Justice Studies, observes: "The social and psychological impacts of a world without war crimes accountability would be devastating. War crimes tribunals serve not only legal functions but crucial social ones—they create authoritative accounts of what happened, provide victims a measure of dignity through acknowledgment, and establish conditions for post-conflict reconciliation. Without these processes, we would see societies torn apart by conflict struggle to rebuild shared narratives or achieve reconciliation. Historical revisionism would flourish unchecked. Victims would be denied recognition, and their trauma would cascade through generations without formal acknowledgment. The psychological burden of unaddressed atrocities would manifest in continued cycles of violence as communities sought extrajudicial vengeance for wrongs never addressed through legitimate processes. By removing the prospect of eventual justice, we would undermine one of the few sources of hope that sustains survivors through the darkest periods of mass atrocity."