War, Guilt and Forgiveness

There is a plot device that often turns up in Hollywood films about Hollywood. The producers want to cut the director’s film. He or his accomplices steal the full version and preview it for the critics, who give the film a rapturous reception. Fantasy? Not really; something like that occurred in 1976 with Marcel Ophuls’s documentary The Memory of Justice. The basis of the film was a book, Nuremberg and Vietnam, by Telford Taylor, one of the American prosecutors at Nuremberg who later investigated US war crimes in Vietnam. Ophuls’s backers came to believe he was spending too much time on the Nuremberg Trials and not enough on the Vietnam War. The director was obdurate. The project had begun, after all, with his discovery of the official films of the trials. The dispute became increasingly bitter, with Ophuls eventually banned from his screening room in London. This was when his confederates stole a work print of the film and an alliance of critics and backers ensured Ophuls could make his own movie.

The Memory of Justice received good reviews but limited distribution. It was not shown here theatrically or on television. Then in April this year the film was revived by Home Box Office in a restored version. Not surprisingly, a major figure behind the reissue was Martin Scorsese. HBO streaming is not readily available in Australia but DVDs of the movie are for sale online so the long-overdue world distribution seems imminent. Since the film is four and a half hours long, with some sequences benefiting from repeated screenings, home viewing could be ideal.

Ophuls’s method is based on a series of lengthy interviews with participants and commentators in settings that make their own comment—a house decked with flags and a display of medals for a rather self-righteous Vietnam War widow; the well-appointed sitting rooms or studies that serve as subtly revealing backgrounds for ex-Nazis. This material is intercut with footage of the trial, excerpts from other newsreels and quotations from fiction films, each in different ways commenting on each other. The Memory of Justice demands close attention to what is said as well as to the visuals. Ophuls stages little or nothing. He films a journey to find the home of a concentration camp doctor; but when he accosts passers-by with questions it is more to establish their indifference to recent history than to get directions.

He did stage one sequence in a later film, The Troubles We’ve Seen (1994). It was about the reporting of the war in the former Yugoslavia. Ophuls showed himself returning from Sarajevo and checking into a lavish Vienna hotel suite and hiring a call girl—dark, rather beautiful, with hard eyes. She disrobes and lies on the bed in the adjoining room while Ophuls engages in an animated phone conversation with his producer, who happened to be Bertrand Tavernier. Ophuls’s explanation at a question-and-answer session on the film at the Sydney Film Festival was that he wanted to show the luxury available only hours away from the carnage in Bosnia. “Whatever may have happened later was between my wife, myself and, of course, the girl,” he remarked enigmatically. We were all pretty sure we were having our legs pulled. I asked him about another sequence where a phone conversation was being filmed seemingly as it happened, showing Ophuls at one end and one of his commentators at the other. “Yes, it is very dangerous and I was very close to the line.” He then explained that his part of the conversation, where an important revelation had been made, was re-enacted, but the crucial response was filmed as it happened. Ophuls had sent a camera crew to capture the moment. Given the free-and-easy way modern documentaries mingle re-enactments with actuality footage, Ophuls’s scruples were, to say the least, refreshing.

Ophuls has said that objectivity is one of the many kinds of subjectivity. He approaches his interviewees as the son of Jewish refugees with certain beliefs that he doesn’t attempt to conceal. In fact his father was the great Max Ophuls, one of the giants of twentieth-century cinema famed for bitter-sweet tragicomedies; and in a delightful sequence at a family birthday party in Hamburg his wife asks why he makes the sort of film he does. “Why not make My Fair Lady over again?” He departs for the next interview with “I See a New Sun” from The Band Wagon on the soundtrack sung (very well) by India Adams, Cyd Charisse’s singing double for the movie. We also hear “I Guess I’ll Have to Change My Plan” from the same film, sung by Fred Astaire and Jack Buchanan. The effect is not just to personalise the film-maker’s quest but to provide welcome relief from the dark subject matter.

Ophuls’s interviewing style, in three languages (English, French and German), is quiet, polite and insinuating. He is a master at turning what could easily be an interrogation into a conversation. However, in a riveting series of exchanges with Grand Admiral Donitz, Ophuls exposes the last ruler of Nazi Germany as a liar and an anti-Semite. The admiral’s quavering convoluted admissions are reinforced by cuts to some of the worst of the concentration camps. Here Ophuls was able to use the documentaries that were screened at Nuremberg. Ophuls avoids the main debate at Nuremberg that featured the admiral and dealt with the conduct of the German Navy. His attack is almost entirely political. In fairness, in spite of the navy’s use of slave labour, its conduct was otherwise impeccable. But as Ophuls admitted later, all he wanted to do was “get Donitz”.

In his treatment of the famous cross-examination of Goering by the American Prosecutor, Mr Justice Jackson, Ophuls goes out of his way to avoid showing the Reichsmarschall’s triumph. An account of Jackson’s failure to cross-examine Goering properly is provided by Hartley Shawcross, along with an excerpt from the footage shot the following day where Chief Justice Lawrence did his best to save Jackson’s face. This is followed by some shots of Shawcross’s deputy Sir David Maxwell Fyfe clearly in control of his cross-examination of Goering.

The full story, however, is worth telling. As Telford Taylor points out in his Anatomy of the Nuremberg Trials published in 1993, nothing had prepared the prosecution for the re-emergence of the very able politician Goering had been in the early 1930s or his mastery of the documents. His own evidence was an unapologetic justification of Nazi policy. Jackson tried to counter this in cross-examination with a series of questions about Nazi policies and actions. These were getting him nowhere. Then it turned out that a document Jackson was using had been mistranslated. “Liberation” meant clearing the Rhine of obstacles, not, as Jackson thought, acquiring territory. Trying to save something, Jackson asked about mobilisations being kept secret from foreign powers. Goering replied, “I cannot recall reading the publication of the mobilisation plans of the United States.” It was a legitimate riposte and Jackson should have let it go. Instead he lost control, and the cross-examination was postponed to the following day. Certainly Sir David Maxwell Fyfe, the British counsel, retrieved the position but his tactics proved to be somewhat dubious.

Ophuls’s wide-ranging treatment of de-Nazification is far less narrow. His deft questioning of participants establishes the extent to which 1970s Germany was riddled with ex-Nazis. The film’s use of the concentration camp footage is a model of restraint, although still horrifying. He was aided immeasurably by a French Resistance fighter, an Auschwitz survivor who not only gave articulate descriptions but in a dramatic moment at the conclusion of her testimony confronted the men in the dock at Nuremberg.

One of the great strengths of The Memory of Justice is the way it explores the qualifications. A retired RAF air-commodore makes the case for treating the bombing of Dresden as a war crime. Evidence is shown that Katyn was indeed a Russian war crime. In interweaving the Vietnam War, Ophuls is not suggesting American behaviour was the same as the Nazis’. But through a series of examples Ophuls demonstrates the need to resist the state in matters of conscience.

Very few films qualify as a work of history but The Memory of Justice makes few if any errors of fact and interpretation and is a sensitive and compassionate meditation on guilt and forgiveness.