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The Memory of Justice a documentary film directed by Marcel Ophuls, restored by the Academy Film Archive in association with Paramount Pictures and the Film Foundation available on HBO

1.

The main Nuremberg war crimes trials began in November 1945 and continued until October 1946. Rebecca West, who reported on the painfully slow proceedings for The New Yorker, described the courtroom as a “citadel of boredom.” But there were moments of drama: Hermann Göring under cross-examination running rings around the chief US prosecutor Robert H. Jackson, for example. Jackson’s opening statement, however, provided the trial’s most famous words:

We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.

How well humanity lived up to these words, after a good number of bloody conflicts involving some of the same powers that sat in judgment on the Nazi leaders, is the subject of The Memory of Justice, the four-and-a-half-hour documentary that has rarely been seen since 1976 but is considered by its director, Marcel Ophuls, to be his best—even better, perhaps, than his more famous The Sorrow and the Pity (1969), about the Nazi occupation of France, the Vichy government, and the French Resistance.

Near the beginning of The Memory of Justice, the violinist Yehudi Menuhin declares that the barbarism of Nazi Germany can only be seen as a universal moral catastrophe: “I proceed from the assumption that every human being is guilty.” The fact that it happened in Germany, he says, doesn’t mean that it cannot happen elsewhere. This statement comes just after we have seen the Nazi leaders, one after the other, declare their innocence in the Nuremberg courtroom.

We also hear a former French paratrooper recall how the French in Algeria systematically tortured and murdered men, women, and children. There are gruesome images of the Vietnam War. And Telford Taylor, US counsel for the prosecution at Nuremberg, wonders how any of us would cope with the “degeneration of standards under pressures.” Later in the film, Taylor says that his views on Americans and American history have changed more than his views on the Germans whom he once judged.

Such juxtapositions are enough to send some people into a fury. The art critic Harold Rosenberg accused Ophuls in these pages of being “lured…into a near-nihilistic bog in which no one is guilty, because all are guilty and there is no one who is morally qualified to judge.”¹ Ophuls, according to Rosenberg, “trivialized” the Nazi crimes and “diluted” the moral awfulness of the death camps.

This is to misunderstand what Ophuls was up to. The film never suggests that Auschwitz and the My Lai massacre, or French torture prisons in Algiers, are equivalent, let alone that the Vietnam War was a criminal enterprise on the same level as the Holocaust. Nor does Ophuls doubt that the judgment on Göring and his gang at Nuremberg was justified. Ophuls himself was a refugee from the Nazis, forced to leave Germany in 1933, and to flee again when France was invaded in 1940. Instead he tries, dispassionately and sometimes with touches of sardonic humor, to complicate the problem of moral judgment. What makes human beings who are normally unexceptional commit atrocities under abnormal circumstances? What if such crimes are committed by our fellow citizens in the name of our own country? How does our commitment to justice appear today in the light of the judgments at Nuremberg? Will the memory of justice, as Plato assumed, make us strive to do better?

Ophuls does not dilute the monstrosity of Nazi crimes at all. But he refuses to simply regard the perpetrators as monsters. “Belief in the Nazis as monsters,” he once said, “is a form of complacency.” This reminds me of something the controversial German novelist Martin Walser once said about the Auschwitz trials held in Frankfurt in the 1960s. He wasn’t against them. But he argued that the daily horror stories in the popular German press about the grotesque tortures inflicted by Nazi butchers made it easier for ordinary Germans to distance themselves from these crimes and the regime that made them happen. Who could possibly identify with such brutes? If only monsters were responsible for the Holocaust and other mass murders, there would never be any need for the rest of us to look in the mirror.

It is true that Ophuls does not interview former Nazis, such as Albert Speer and Admiral Karl Dönitz, as a prosecutor. His role is not to indict, but to understand better what motivates such men, especially men (and women) who seem otherwise quite civilized. For this, too, Rosenberg condemned him, arguing that he should have balanced the views voiced by these criminals with those of their victims, for otherwise viewers might give the old rogues the benefit of the doubt.

There seems to be little danger of that. Consider Dönitz, for example, who makes the bizarre statement that he could not have been anti-Semitic, since he never discriminated against Jews in the German navy, forgetting for a moment that there were no known Jews in Hitler’s Kriegsmarine. When Ophuls asks him whether he really believes that there was no connection between his ferociously anti-Semitic speeches and the fate of the Jews under the government he served, the admiral’s tight little mouth twitches alarmingly before denying everything in the harsh yelp of a cornered dog. This speaks for itself, and needs no “balancing” by another voice.

Ophuls is a superb interviewer, polite, cool, and relentless. His tone is often skeptical, but never moralistic or aggressive. This allows him to get people to say things they may not have divulged to a more confrontational interlocutor. Albert Speer was responsible for, among other things, the ghastly fate of countless slave laborers pulled from concentration camps to work in German armaments factories. Responding to Ophuls’s quiet probing, this most slippery of customers speaks at length about the moral blindness and criminal opportunism that came from his ruthless ambition. Unlike most Germans of his generation, Speer believed that the Nuremberg trials were justified. But then, he could be said to have got off rather lightly with a prison sentence rather than being hanged.

Where Dönitz is shrill and defensive, Speer is smooth, even charming. This almost certainly saved his life. Telford Taylor believed that Speer should have been hanged, according to the evidence and criteria of Nuremberg. Julius Streicher was executed for being a vile anti-Semitic propagandist, even though he never had anything like the power of Speer. But he was an uncouth, bullet-headed ruffian, described by Rebecca West as “a dirty old man of the sort that gives trouble in parks,” a man one could easily regard as a monster. The judges warmed to Speer as a kind of relief. Compared to Streicher, the vulgar, strutting Göring, the pompous martinet General Alfred Jodl, or the hulking SS chief Ernst Kaltenbrunner, Speer was a gentleman. What saved him, Taylor recalls in the film, was his superior class. When Ophuls puts this to him, a ghostly smile flits across Speer’s face: “If that’s the explanation…, then I am only too pleased I made such a good impression.” In the event, Speer got twenty years; Dönitz only got ten.

Ophuls said in an interview that it was easy to like Speer. But there is no suggestion that this mitigated his guilt. The historian Hugh Trevor-Roper, who also interviewed Speer at length, called him “the true criminal of Nazi Germany,” precisely because he was clearly not a sadistic brute but a highly educated, well-mannered, “normal” human being who should have known better than to be part of a murderous regime. This is perhaps the main point of Ophuls’s film as well: there was nothing special about the Germans that predisposed them to become killers or, more often, to look away when the killings were done. There is no such thing as a criminal people. A quiet-spoken young architect can end up with more blood on his hands than a Jew-baiting thug. This, I think, is what Yehudi Menuhin meant by his warning that it could happen anywhere.

2.

Far from being a moral nihilist who trivialized the Nazi crimes, Ophuls was so committed to his examination of guilt and justice that The Memory of Justice had a narrow escape from oblivion. The companies that commissioned it, including the BBC, did not like the rough cut. They thought it was far too long. Since the film was to be based on Telford Taylor’s book Nuremberg and Vietnam: An American Tragedy (1970), they wanted more on the Vietnam War and less on Nuremberg. Rejection only made Ophuls, who never took kindly to being told what to do by the men in suits, stick more stubbornly to his own vision. He was less interested in a specifically American tragedy, or indeed a German tragedy, than in man’s descent into barbarousness, wherever or whenever it happens.

Ophuls was locked out of the cutting room in London. The producers put together a shorter version of the film, with a different spin, which was sold to ZDF television in Germany. Ophuls then traveled all over Europe to save his own version. A German court stopped ZDF from showing the shorter one. The original edit was smuggled to the US, where a private screening reduced Mike Nichols to tears. Hamilton Fish, later a well-known publisher, managed to persuade a group of investors to buy the original movie back and Paramount to distribute it. It was shown at the Cannes Film Festival in 1976, and then in New York and on college campuses, as well as on television in many countries. But for the cussed perseverance of Ophuls and the help of his American backers, The Memory of Justice would never have been seen. In Fish’s words, “You needed his type of personality to make such a film. He took history on personally.”

After its initial run, however, the movie disappeared. Contracts on archival rights ran out. The film stock was in danger of deteriorating. And so a documentary masterpiece could easily have been lost if Martin Scorsese’s Film Foundation had not stepped in with Paramount to put it all back together again, a labor that took ten years and was completed in 2015.

Much has changed, of course, since 1976. Germany is a different country now, geographically, politically, and culturally. When Ophuls talked to Dönitz, the West German establishment was still riddled with former Nazis. Most of the wartime generation masked their dirty secrets with evasions or shabby justifications. The history of the Third Reich, in the words of Eugen Kogon, a Holocaust survivor and the first German historian to write about the camps, was still “the corpse in the cellar.”

Quite ordinary people, like the smiling man encountered by Ophuls in a small town in Schleswig-Holstein, still remembered the Third Reich with great fondness as an orderly time when people knew how to behave and there was “no problem of crime.” Ophuls happened to meet this friendly burgher while he was trying to track down a female doctor who had been convicted at Nuremberg for murdering children in concentration camps by injecting oil into their veins, to name just one of her grisly experiments. After she was released from prison in 1952, she continued for a time to practice as a family doctor. She was, it appears, well respected, even friendly.

When Ophuls finally managed to find her, she very politely declined to be interviewed, since she was in poor health. Another former concentration camp doctor, Gerhard Rose, did agree to talk, however, but only to deny any guilt, claiming that his medical experiments (infecting victims with malaria, for example) served a humanitarian purpose, and that the US Army performed experiments too. Ophuls observes, quite rightly, that American experiments were hardly conducted under the kind of circumstances prevailing in Dachau and Buchenwald. But the hypocrisy of the Western Allies in this matter might have been better illustrated by pointing out that German and Japanese doctors who committed even worse crimes than Dr. Rose were protected by the US government because their knowledge might come in handy during the cold war.²

Perhaps the most disturbing interview in the movie is not with an unrepentant Nazi or a war criminal, but with the gentlemanly and highly esteemed lawyer Otto Kranzbühler. A navy judge during the war, Kranzbühler was defense counsel for Admiral Dönitz at Nuremberg, where he cut a dashing figure in his navy uniform. He later had a successful career as a corporate lawyer, after defending the likes of Alfried Krupp against accusations of having exploited slave labor. Kranzbühler never justified Nazism. But when asked by Ophuls whether he had discussed his own part in the Third Reich with his children, he replied that he had come up with a formula to make them understand: if you were ignorant of what went on, you were a fool; if you knew, but looked the other way, you were a coward; if you knew, and took part, you were a criminal. Were his children reassured? Kranzbühler: “My children didn’t recognize their father in any of the above.”

It was a brilliant evasion. But Kranzbühler was no more evasive than the French prosecutor at Nuremberg, the equally urbane Edgar Faure, who had been a member of the Resistance during the Nazi occupation of France. Ophuls asked him about French war crimes during the Algerian War of Independence, when torture was systematically applied, civilians were massacred, and prisoners were thrown out of helicopters, a practice that later became widespread under South American military regimes. “Well,” said Faure, “events do get out of hand. But you can’t really criticize politicians who have the difficult task of running the government.” Edgar Faure was prime minister of France during part of that war.

The 1970s were a critical time in Germany. There were still people, like the son of the former Waffen SS officer interviewed by Ophuls, who believed that the Nazi death camps were a lie, and it was the Americans who built the gas chambers in concentration camps. But the postwar generation had begun to question their parents amid the student revolts of the 1960s. Just a year after The Memory of Justice was completed, radicalism in Germany turned toxic, when members of the Red Army Faction murdered bankers, kidnapped industrialists, and hijacked planes, all in the name of antifascism, as though to make up for their parents’ complicity with the Nazis.

German families were torn apart by memories of the war. Ophuls includes his own not uncomplicated family in the film. His German wife, Regine, the daughter of a Wehrmacht veteran, speaks openly to American students about her own childhood under the Nazis. One of their teenaged daughters talks about the need to come to terms with the past, even though their mother finds seventeen a little too young to be confronted with images of concentration camps. Then Regine says something personal that cuts to the core of her husband’s life and work. She wishes sometimes that Ophuls would make films that were not about such dark matters. What kind of films? he asks. Lubitsch films, she replies, or My Fair Lady all over again. We then hear Cyd Charisse singing “New Sun in the Sky” from The Band Wagon (1953), while watching Ophuls in a car on his way to find the doctor who murdered children in concentration camps.

This is typical of the Ophuls touch, show tunes evoking happier times overlapping with memories of horror. The motive is not to pile on cheap irony, but to bring in a note of autobiography. His father was Max Ophuls, the great director of Liebelei (1933), La Ronde (1950), and Lola Montès (1955). Max was one of the geniuses of the exile cinema. Memories of a sweeter life in imperial Vienna or nineteenth-century France are darkened in his films by a sense of betrayal and perverse sexuality.

Nostalgia for better days haunted his son, who spent his youth on the run from terror with a father whose genius he always felt he couldn’t live up to. He would have loved to direct movies like La Ronde. Instead he made great documentary films about the past that won’t let him go, about Vichy France, or Klaus Barbie, the Gestapo butcher of Lyon, or Nuremberg. The true horror stories are mixed in all his work, as in a collage, with songs from pre-war Berlin music halls and Hollywood movies.

One of the most unforgettable examples of the Ophuls touch is a scene in a film that has almost never been viewed (another bitter fight with producers). November Days (1991) is about the fall of the Berlin wall. One of the people he interviews is Markus Wolf, the former East German spy chief, whose father, the Communist writer Friedrich Wolf, had known Max Ophuls in pre-war Berlin. While Markus dodges every question about his past with blatant lies, we hear music from one of Max’s movies slowly swell on the soundtrack as Marcel thinks out loud to himself how lucky he was that his father decided to move west instead of east.

3.

In the second half of The Memory of Justice, the focus shifts from east to west, as it were, from Germany to France and the US. Daniel Ellsberg, speaking of Vietnam, says that “this war will cause us to be monstrous.” We hear stories from men who were there of American soldiers murdering civilians in cold blood. We hear a Vietnam veteran talk about being told to shut up by his superiors when he reports a massacre of civilians ordered by his commanding officer. We hear Ellsberg say that no one higher than a lieutenant was ever convicted for the mass killing of Vietnamese civilians by US soldiers in My Lai.

On the French side, stories about summary executions and the use of torture during the Algerian War (1954–1962) are followed by a crucial question put by Ophuls to Edgar Faure, the former Nuremberg prosecutor and later prime minister of France: Did he, Edgar Faure, think the French would have accepted an international commission that would judge, on the basis of Nuremberg, what the French did in Algeria? No, said Faure, after a pensive suck on his pipe, since one cannot compare the invasion of another country to the actions taken by a sovereign state in its own colony.

Sir Hartley Shawcross, the British prosecutor at Nuremberg, speaking to Ophuls in his elegant country house in Sussex, remembers how much his American colleagues had believed in justice and the rule of law. Like other British officials at the time, he took a more cynical view: “All law is created by the victors for the vanquished.” What mattered in his opinion, however, was not who made the laws, but whether the principles were right. About this he had little doubt.

Looking back, Otto Kranzbühler shared Shawcross’s memory of American idealism. But he believed that as a model for the future, Nuremberg had been a failure. The trial, as he saw it, presupposed a united world community in which wars would be a thing of the past. This illusion did not last long.

In fact, the trial was tainted from the beginning, not only because among the men who judged the Nazi leaders were Soviet veterans of Stalin’s bloody show trials, but also because Allied war crimes could not even be mentioned. A former British officer involved in the wartime bomber command had no doubt that the destruction of Dresden was a war crime.

If The Memory of Justice has a weakness, it is that this second half of the film, concentrating on French and American war crimes, is not quite as gripping as the first half about the German legacy of Nuremberg. Perhaps Ophuls’s heart was not in it to the same extent. Or perhaps no matter what one thinks of My Lai or Algiers, they are overshadowed by the sheer scale and savagery of the Nazi crimes.

Then again, pace Rosenberg, Ophuls doesn’t suggest that they are equivalent. What is comparable is the way people look away from, or justify, or deny what is done in their name, or under their watch. The wife of a US marine who died in Vietnam, living in a house stuffed with flags and military memorabilia, simply refuses to entertain the idea that her country could ever do anything wrong. More interesting, and perhaps more damning, is the statement by John Kenneth Galbraith, an impeccably liberal former diplomat and economist. His view of the Vietnam War, he tells Ophuls, had been entirely practical, without any consideration of moral implications.

Vietnam was not the Eastern Front in 1943. My Lai was not Auschwitz. And Galbraith was certainly no Albert Speer. Nevertheless, this technocratic view of violent conflict is precisely what leads many people so far astray under a criminal regime. In the film, Ellsberg describes the tunnel vision of Speer as “controlled stupidity,” the refusal to see the consequences of what one does and stands for.

This brings to mind another brilliant documentary about controlled stupidity, Errol Morris’s The Fog of War (2003), featuring Robert McNamara, the technocrat behind the annihilation of Japanese cities in World War II and the escalation of the Vietnam War in the 1960s. To him, the deliberate killing of hundreds of thousands of civilians was a mathematical problem. Only many years later did he admit that if the US had lost World War II, he could certainly have been indicted as a war criminal.

Even more chilling is another documentary by Morris, which received less attention than The Fog of War. In The Unknown Known (2013), we see Donald Rumsfeld, another gentlemanly technocrat, shrug his shoulders about Vietnam, commenting that “sometimes things just don’t work out.” When, as the result of another war in which he was even more intimately involved, Baghdad was convulsed in anarchic violence, he notoriously remarked that “stuff happens.” This is what Hannah Arendt called a “criminal lack of imagination.”

Perhaps the US in 1945 set its ideals too high. But it is a tragedy that the same country that believed in international law, and did so much to establish the norms of justice, has done so little to live up to them. The US is not even a signatory to the International Criminal Court, a flawed institution like the Nuremberg tribunal, but a necessary step in the right direction. No one can hold the greatest military power on earth accountable for what it does, not for torture rooms in Abu Ghraib, not for locking people up indefinitely without trial, not for murdering civilians with drones.

For Germans living under the Third Reich it was risky to imagine too well what their rulers were doing. To protest was positively dangerous. This is not yet true for those of us living in the age of Trump, when the president of the US openly condones torture and applauds thugs for beating up people at his rallies. We need films like this masterpiece by Ophuls more than ever to remind us of what happens when even the memories of justice fade away.

AUGUST 17, 2017 ISSUE