In Marcel Ophuls’s The Memory of Justice, Stalin is quoted as having proposed shooting 50,000 top Nazis at the end of the war as a beginning of retaliation for their murder of millions. Historical accounts show that Roosevelt and Churchill had also been in favor of summary executions.1 In time, however, legalistic reasoning prevailed, and a trial of twenty major Nazis lasting almost a year was conducted at Nuremberg. Ever since that four-nation tribunal was assembled, there have been disputes about whether justice was done by it, or whether the Nuremberg Trial was an act of revenge carried out by the victors against the vanquished. If Nuremberg was not an expression of justice, it has been taken to follow that the convicted Nazis were unfairly condemned, that given the pressures on Germany in the Thirties and the abnormalities of war their behavior was no worse than that of others would have been (as evidenced by the fire-bombing of Hamburg and Dresden by the Americans and British, the atom-bombing of Hiroshima and Nagasaki, the slaughter of the Polish officers by the Russians), and that therefore they deserve sympathy and remorse.

Perhaps I should confess at the outset that I regard commiseration for the Nazis as “human beings” as intellectually degrading and morally degenerate. To me, concern about a square deal for the Nuremberg defendants belongs at best to the kind of sentimentality that led Jean Valjean to rescue the blood-hound Inspector Jouvet who had trailed him for years from execution by the Paris revolutionists. To defend the human status of Elite Corpsmen, whose “heroism” consisted in purging themselves of all traces of human feeling, who stood at the doors of the gas chambers making jokes while prodding children inside, represents, in my opinion, a decadent application of the Christian principle of turning the other cheek and returning good for evil. At least, Jean Valjean repaid good for the evil which he personally had suffered at the hands of Jouvet.

To forgive acts of viciousness suffered by others is the meanest condition into which one can be cast by the feeling of self-righteousness and the wish to relieve the heart of the burden of demanding revenge. To his credit, Hugo had the insight to recognize that Valjean’s act of generosity would rebound against himself and in no degree divert Jouvet from his hunter’s obsession. In the twilight of Christian charity, the true defender of civilization is not the practitioner of universal forbearance but the unswerving, single-minded angel of reprisal, in whose entire organism there is not a soft spot. No waffling. Catch him and apply the sentence.

The same corrective as Jouvet’s to post-Christian decadence and its inexhaustible supply of moral/emotional ambiguities was embodied in Melville’s Captain Vere. Billy killed the mate—never mind his innocent state, never mind his lack of intention, never mind accident, determinism, and extenuating circumstances. Hang him. Or you will all go down into the pit. The pit of false sympathy, shallow self-identifications, counterfeit brotherhood, hypocritical sharing of the guilt. Weaken the individual’s responsibility for what he has done and society turns into an animal farm.

Ophuls’s Memory of Justice raises anew the question of whether justice was done at Nuremberg. Today, thirty years after the trial, the behavior of the defendants is to be seen in the light of American violence in Vietnam, French torture in Algiers, atrocities by Algerian rebels against French colons. With the historical record crowded with inhuman acts, can the crimes of the Nazis appear as exceptional as they did three decades ago?

While preparing to make this film, Ophuls, it seems, came across a passage of Plato’s regarding ideal justice and the thought that men guide their lives by the vague recollection of it. The Platonic concept of perfect justice became the standard of Ophuls’s movie. By this measure, which Ophuls makes no effort to define either in Plato’s terms or his own, “the difficulty of judging others” emerges as the leitmotif of the film. More specifically, Memory is presented as “an inquiry into the relations existing between the history of modern societies and their notions of justice.” Intellectually this is pretty hazy stuff, but it is clear enough in its intention to dilute the certainty that the Nazi mass murderers deserved to be harshly dealt with. Other themes discovered in Memory also contribute to weakening the Nuremberg verdict of guilty. Have the principles laid down at Nuremberg survived the crimes of the nations that set up the tribunal? If not, upon what grounds can evil be isolated and condemned? Is it actually possible to judge the conduct of a nation or of individuals?

Naturally, by the standard of perfect justice, the difficulty of reaching a verdict that takes into account the unbounded universe of objective fact and subjective motive is insurmountable. The judge ends by judging himself. Moreover, neither the societies under scrutiny nor their concepts of justice have been admirable. By thus dumping modern mankind into a limbo between an indistinct ideal (perfect justice) and compromising historical incidents (Hiroshima, My Lai), Ophuls reaches the conclusion that while the crimes of the Nazis were “iniquitous” the Germans are “just like other people.”


In Dostoevsky’s Notes from Underground, the narrator contends that unless one who is injured reacts directly, the impulse toward retaliation is continually watered down by interpretations of how the offense came about. By the time the inquiry has been pursued to the end (there is no end), nothing is left of the victim’s original rage but helpless spite. How much more is this the case when the victim to be avenged is someone else. In the age of science, the Underground Man discovers, the passion for retaliation gives way to sick theorizing. Undoubtedly, there was more cold disputation than avengers’ fury at Nuremberg. But why should the emotional inadequacy of the judges and prosecutors be credited to the malefactors, particularly since the inadequacy of the judges is typical of the epoch? Were it not for emotional vacillation the Nazi criminals would not have lived to be tried. The only reason there is complaint about Nuremberg is that there was a Nuremberg. Had Goering and his jolly men been shot outright the argument about their guilt would have been closed.

Never was there an instance in which righteous people, if they existed, had more reason than in Germany at the breakup of Hitler’s power to spring upon the conspirators and try and condemn them on the spot. In Italy the mob that got Mussolini into their hands dispatched him with suitable ferocity. The Italians purged themselves of the Duce who had forced himself upon them as their personification. A similar purge never took place in Germany. Instead, the Germans, from the highest to the lowest, denied that their Fuehrer was their responsibility, or they acknowledged a guilt so thinly spread out over all as to amount to little more than excessive attention to one’s own business. The brightest bit in Memory, and the truest, is the interview with the theater man who insists that he was the only Nazi and that the huge crowds at the Hitler rallies consisted of him alone. This difference between the Italians and the Germans is one instance in which the Germans are not, as Ophuls claims, “just like other people.”

So, I will be told, you advocate lynching in preference to courtrooms. What about, for instance, the personal or political vindictiveness of partisans when they get the chance to take the law into their own hands? My answer is: the court that deals with capital crimes meets under the frightening shadow of the Furies, whom it must satisfy with its rational alternative. To be a real alternative, it must approximate vengeance in appeasing the soul of the victim or whoever stands in his place. The law, a French chief justice observed in connection with the Eichmann trial, cannot tolerate the scandal of immunity (think of the Nixon pardon). Whenever criminal acts can be performed without retribution, the law court loses efficacy as a civilized substitute for vendetta. If Nuremberg has not served as a deterrent to government-sanctioned atrocities, it is not because it failed to do justice to the defendants but because it fell short of spiritual compensation for the torments of the victims. Societies in both hemispheres have been contaminated by hospitality to inadequately punished Nazis.

Ideal justice cannot be realized, of course—that’s why it remains ideal—and one who looks to the ideal ought not to expect to see it applied to actual offenses. For one thing, the accused is always tried for an act he has committed in the past; at the time of the trial he is a different man, biologically, psychologically, and perhaps—given the new experience of being faced with the social formulation of what he has done—even morally. I seem to recall reading that Julius Streicher, the obscene Jew-killer, repented his anti-Semitism while incarcerated at Nuremberg and became an admiring student of the history of the Hebrews. In some degree, punishment is always meted out to a stranger who bears the criminal’s name. At the trials of the French collaborators, Sartre and de Beauvoir were troubled by this question of identity: they had known this or that fellow in school—a bright, friendly boy, what did he have to do with this traitor and nasty informer in the dock?

Also, looked at from the other end of the action, would this harmless bumbler on trial be capable of committing his outrages now? In The Memory of Justice, Mme Vaillant-Couturier, who had been a prisoner at Auschwitz, after leaving the witness stand walks past the prisoners’ box containing Goering, Hess, Jodl, and the rest, and remarks that she suddenly saw them as human beings. A metamorphosis had taken place. The real criminals have been carried off by history and will never return. In their place has been left a group of aging stand-ins, sick and trembling with fear. Judgment will be pronounced on a round-up of impersonators, a collection of dummies borrowed from the wax-works museum. At worst, these feeble, mediocre fellows, “just like other people,” could only have been, as they claim, cogs in the death machine somehow fashioned by history.


“But, ah!” cried a voice from the balcony at the Eichmann trial in Jerusalem, “you should have seen him in his colonel’s uniform.” Yes, the trial is about that other, the creature empowered to dispatch millions to destruction, not this pathetic organism anxiously following the proceedings through his earphones. That fabulous malefactor, though locked forever into an interval of his past, and no longer accessible to the living, cannot be allowed to rest in his perfect refuge.

Justice cannot be attained, only some kind of rough retaliation, which is mostly futile, but without which no incident could be closed and life would be made intolerable by unhealed wounds. The law reached Eichmann and the Nuremberg defendants too late, when they were no longer who they had been. Worse still in regard to ideal justice, were they ever only those guilty actors who were being tried? The law judges a person by his deeds, but what man is not more than he does? Whose being, since we live in a socio-historical continuum, cannot be seen as essentially irrelevant to what he does? As exemplified by Mme Vaillant-Couturier’s seeing the men not the actors and thinking that they looked like human beings, there is a perspective in which the top Nazis, too, not only the Germans, are “just like other people.”

A Chicago lawyer who served as a prosecutor in war crimes trials in Bavaria told me that in case after case the evidence established beyond doubt that Wolfgang A—and Otto B—had tortured and murdered concentration camp inmates in cold blood and simply to amuse themselves, but that the same Wolfgang and Otto had been good boys in school, dutiful sons, faithful husbands, devout churchgoers, brave, patriotic Germans, in sum, pillars of the town. As Dostoevsky liked to point out, the human soul has a broad range. A small segment of the psyche of these Bavarian folk, maybe a very minor portion, contained an appetite for viciousness, but if circumstances had not put in their hands the means for satisfying that taste, they might have passed their lives as worthy citizens.

In The Confidence Man, Melville describes a type whom he calls the Indian Killer. The Killer is a quiet fellow, who has a good reputation in town for honest dealing and helping his neighbors. One midnight, this peaceful citizen springs out of bed, grabs his musket off the wall, slinks out of the house and lopes off into the woods. He has resolved to “kill myself a few Indians.” From that moment on, he is the deadly trapper, cunning and fearless, a landlocked Ahab. Several days later, returning from his expedition with half a dozen scalps in his belt, he steals into his house, goes to bed, and the following morning reappears in town in his usual guise of the model good guy. Since there were no prosecutors to represent justice for the Indians, the Killer’s lethal passion could be considered a mere character trait.

To measure the guilt of the good Bavarians was enough to drive the American prosecutors into a fever. When court recessed for the day, they would meet at a bar and put themselves problems such as these: if your Wolfgang murdered eighty people, besides raping and torturing, and my Otto only shot sixteen adult males in spasms of playfulness, is it just that both should receive the same punishment? But what does murdering only sixteen mean?… Better have another drink.

The Nazis, both before and after their defeat, counted on the ambiguities and limited reach of the law. In their fight for power, they exploited legality at every turn—for example, the Reichstag Fire Trial, all legal and, as the Germans like to say, “proper.” The National Socialist Party itself was formed as a law-evading mechanism through its principle that the Fuehrer was solely responsible for everything, hence that every member was only carrying out orders, which he could plead as extenuation—a kind of limited liability company. The psychological effectiveness of this arrangement can be gauged by Goering’s feeling of innocence when, upon the collapse of the Third Reich, he drove into the British sector in an open car waving to passers-by and expecting a field marshal’s welcome.

At Nuremberg the Nazis were present as wards of legality, all the challenges being directed at the right of the court to try them and at the validity of such novel counts in the indictment as “waging aggressive war” and “crimes against peace.” In an improvised court lacking in precedent, and with their responsibility truncated by the absence of their Chief, the heirs of Hitler continued to wield the law as a weapon. But if there are ambiguities about Nuremberg, in addition to those that affect law in general, there are no ambiguities about Nazi guilt. It is time that people of good will stopped mistaking the form of the court for the substance of the act.


Movies seem to prosper in an intellectual and moral vacuum.

—Luis Buñuel

The impossibility of ideal justice under the law seems to have lured Ophuls 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. Among the questions raised by The Memory of Justice, one that is probably the most important is missing: on what basis is a maker of documentary movies equipped to comment on historical events and to reach conclusions about crime and retribution? To quote Plato on justice without further analysis is to engage in phrase dropping—the title “The Memory of Justice” is effective not through what it means but through its overtones of feeling, of a kind not dissimilar to a passage of 1920s jazz or a photo of Hitler riding in triumph through Paris. In short, an idea is presented for its aesthetic effect, a sort of brush stroke. Constructed according to this rule, can the documentary be an effective mode of thinking about grand issues?

The movie camera is primarily a machine for collecting visual data. In documentaries these data are augmented by opinions and recollections supplied through interviews. All these—the photo images and the verbal testimonies—are potentially limitless in quantity. Also, all are subject to various kinds of distortion and falsification, for example, through physical resemblances between objects and scenes that are essentially different, and by false and mistaken statements. To avoid bias Ophuls admits into Memory views that differ from his own, in the belief that deformations of the historical picture will correct themselves as more data are added. Admiral Doenitz, for example, is convinced that he has done no wrong, and that speeches he delivered attacking the Jews in no way contributed to the establishment of concentration camps. There is, however, no way of calculating that a sufficient weight of opinion has been piled on the other side of the scale from Doenitz. Nor do we know that any number of denunciations of Germans such as Doenitz could cancel the effect of the admiral’s smug self-assurance. Actually, very little is heard in Memory from Jews, Gypsies, Social Democrats, and Hitler-haters, though without the victims’ hatred of their oppressors the quest for justice lacks substance.

Ophuls has denied that his film intended to “equate” Auschwitz and My Lai—in his view, it merely suggests “comparisons.” Ophuls’s response could be valid if his medium were able to make this kind of distinction apparent to the movie audience. The moviemaker, however, cannot control the effect of juxtaposition on the spectator. Film shots of piles of corpses create an “equation” between the acts that produced them and those responsible for those acts, regardless of what the filmmaker had in mind. Pictures are less abstract than words, and the impressions they discharge convey blunter messages. An instantaneous connection is established between corpses in a ditch and in the Chicago garage on St. Valentine’s Day—the link of gangster violence. No other medium offers greater opportunities for shallow analogies and spurious certainties.

Ophuls originally shot ninety hours of film. Like any report of events, a documentary is essentially endless. At any point in one’s life, one could spend the rest of it watching what happened during a preceding fraction. Yet letting the camera run on tells no more than that the world is full of things from this angle or that. Since an uncut film amounts to staring at nature, the reduction of Memory to its present four and a half hours was designed to produce an intellectual synthesis—in brief, Ophuls’s message that justice is unattainable but that men strive for it anyway.2 Frankly, I failed to see this in the film. What I did see was that the Allies were not morally competent to try the Nazis, and I saw and heard Yehudi Menuhin deliver the concluding statement of the film. This statement—by its positioning as the last word, as well as by its reiteration of the belief, echoed in various ways throughout the film, that judging others was wrong—caused the film to add up to the view that in this imperfect world it was intellectually crude to try the Germans as criminals. I don’t know if this is Ophuls’s opinion but this is what his film says.

Menuhin is by far the most fatuous interviewee in Memory. He was the first artist to return to perform in Germany after the war, his explanation being that since no member of his own family had been put to death he lacked the antagonism of other Jews. And he had a good “Christian” message: no one can judge the criminal but the criminal himself. This Dostoevskian tenet might hold for some isolated Raskolnikov, but for a criminal with a nation of collaborators nothing could be more farfetched. Goering, Doenitz, and half a dozen others had clearly indicated that for the convinced Hitlerite, and even milder anti-Semites, killing Jews was not considered a crime—the Jews, assuming that so many of them had been killed, were casualties of war, more than expiated by German losses at Stalingrad and by Allied “atrocity” bombings of Hamburg and Dresden. Documentaries splatter bits of evidence but don’t add them up, so Menuhin can wait for the Nazis to indict themselves. Menuhin, however, receives support from that noted disseminator of sweetness and light, John Simon, who calls Menuhin’s statement that “judgment should really come from within the person who committed the crime” a “sublime conclusion”—and who ends his review with the disclosure that “surely the lesson of the film is that the true enemy is, with rare exceptions, within ourselves.” If profundities such as these need to be uttered, decency demands that they be withheld from discussions of Auschwitz.

In a recent issue of The New York Review,3 Gore Vidal charged that in contemporary films “the human situation has been eliminated not through any intentional philosophic design but because those who have spent too much time with cameras and machines seldom have much apprehension of that living world without whose presence there is no art.” (Or, he might have added, truth.) In dealing with serious topics, the hubris of filmmakers consists in assuming that skill in handling pictures in an effective manner is sufficient for the procreation of ideas.

Ophuls deals with the momentous issues of Nazi and German guilt within blinders he is not aware that he is wearing. His reconstitution of Western history since Nuremberg draws on journalistic raw materials selected according to a mixture of prevailing catchwords and a sense of showmanship. To the generation of viewers who have grown up since the Nazi crimes were perpetrated, Memory presents a dilution of the moral awfulness of the death camps and the killing of civilians and war prisoners, and it trivializes the significance of this vast organized death system by fitting pictures of corpses being dragged to pits into a rhythm of night-club performers, lush landscapes, chatter in sauna baths, and gentlemen reminiscing reflectively at their fireplaces.

This Issue

January 20, 1977