Toward the end of The Memory of Justice—the new four-and-a-half-hour long documentary film by Marcel Ophuls which, using old newsreels and film clips intercut with interviews in the present, attempts to cast light on the nature of war crimes in our time—there occurs one of those moments, small in themselves, that invite disproportionately large reflections on the entire enterprise of which they are a part.

The scene takes place in a sauna in Germany. In the course of it the viewer is vouchsafed a visit with some of Hamburg’s citizens, youngish to middle-aged men and women who loll about together in the steam while they outline the merits of the mixed sauna for the benefit of Ophuls and his crew. Here in the steam room, one thirtyish naked German man of ample girth earnestly explains, everyone is equal: Jew and Gentile, the man who owns a Porsche and the one who drives a Volkswagen. Perhaps because—given this testimony to the breakdown of social barriers—nothing seems unnatural in the mixed sauna, the talk turns easily enough to what happened to the Jews so long ago in that other Germany. The thirtyish German looks somber as he reflects on the mass murders; another, lanky and dark, observes that the schools do not teach enough about this period. Others turn their faces up to catch the conversation or shift sauna-bathing positions; and not a few of these are pretty girls, as the camera shows, playing over the pack of nubile bodies stretched the length of the sauna floor. Meanwhile, in the course of his observations about the Jewish fate, the thirtyish German bites back the word “gassed.” Shortly thereafter the camera follows one of the nude girls to the shower stall, where it lingers on the overhead pipes sufficiently long for the veriest blockhead to make the connection between this and the shower heads of Auschwitz.

By this time it does not occur to the viewer to ask by what inexorable logic we find ourselves in a Ger man sauna where such comparisons lie ready and waiting. The random hunt for the provocative, evident in so much Ophuls presents in the foregoing four-and-a-half hours, has by now earned a kind of acceptance as an elemental part of the film.

It is not, however, for its random nature that this film is significant. The Memory of Justice opens with the familiar footage of the Nuremberg proceedings, the spectacle of Goering, Speer, Hess, and the rest of the Nazi hierarchy in the prisoners’ box, earphones on as they listen to the recital of atrocities perpetrated under National Socialism. Immediately afterward there flash in quick succession previews of the themes Ophuls will touch on: Yehudi Menuhin, in the course of an interview in Berlin in 1973, a presence at once steely and languid, enunciating his belief that every human is guilty; a former French soldier narrating the story of atrocities perpetrated by his country’s military during the Algerian war; Colonel Anthony Herbert, who bore witness to the massacre of Vietnamese civilians and the subsequent cover-up of the crime.

This essentially is the range of Ophuls’s concerns in the film, then: Nuremberg, Algeria, My Lai, all thrashed about by a cast that includes Telford Taylor, Daniel Ells-berg, Ophuls’s wife (a former member of the Hitler Youth), a French Communist Senator and survivor of Auschwitz, the clients of a sauna, Admiral Karl Doenitz, students in Ophuls’s Princeton film seminar, the Rt. Hon. Lord Hartley Shawcross, convicted Nazi medical researcher Dr. Gerhard Rose, and Joan Baez, among others.

It is striking that a mere listing of the principals—these are by no means all of them—carries with it a faint but unmistakable suggestion of comedy. And indeed, there are moments in the film when, abandoning a hopeless quest for the provocative (as Ophuls must sometimes do when the passing German housewife or stroller in Schleswig-Holstein he catches with his cameras simply has nothing remotely significant to say), he engages in a kind of aimless, genial spoofing instead. Regularly, the film turns to these excursions into “humanness,” Ophuls’s substitute whenever encounters with his subjects fail to yield substantive drama.

In a typical extended scene of this sort, Ophuls goes off in search of a woman doctor who had been sentenced to imprisonment by the Nuremberg tribunal for murdering concentration-camp prisoners and who now lives quietly in Schleswig-Holstein. Along the way he gets run off a hostile farmer’s land and asks questions of passersby who have heard of the doctor but have very little else to offer about her by way of comment. One man, having told the little he knows, senses the noose of small talk tightening. Impatient with Ophuls’s gregariousness, he walks away, indicating, not without some justice on his side, that a person need not indefinitely be detained by conversations to which he has nothing whatever to contribute. At journey’s end, Ophuls’s encounter with his subject consists of a view of the doctor’s house, from the outside, while from within one hears a brief cordial exchange in which Ophuls’s request for an interview is denied. Thus we have been brought hither and yon to view the outside of a house and overhear Ophuls being refused an interview.

This rambling, or “discursiveness” as it is called in the torrent of critical enthusiasm with which The Memory of Justice has been received, is not without its significance. That is, there is a reason for this meandering, this quest for paradox, not to say the necessity to manufacture drama, and that reason can best be illuminated by noting the difference between this latest Ophuls documentary and his earlier film about collaboration and resistance during the Nazi occupation of France, The Sorrow and the Pity.

One need only recall for a moment the nature and quality of the participants in The Sorrow and the Pity—the resistance members of Clermont-Ferrand, the collaborators, the British agents, the remarkable farmer-heroes, the Graves brothers—to know how much that film’s power was derived from the rendering of direct experience, and the degree to which the hard, substantive nature of that experience contributed to the coherence of vision. There is but one echo of this coherence in The Memory of Justice, and that is in the character of the French Communist Senator, Marie Claude Vaillant-Couturier, survivor of Auschwitz whose sole function in the film is to bear witness. Nor is it surprising that Mme. Vaillant is by far the most compelling and attractive figure of the lot available in The Memory of Justice. One thinks of all the Vaillants in The Sorrow and the Pity, those vessels of experience that give the film its clarity of moral vision, even in—particularly in—its disquisitions on the nature of justice, a subject with which The Sorrow and the Pity is concerned quite as much as is The Memory of Justice.

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The difference between the earlier film and Ophuls’s latest is that the first relies on history for its shape and coherence, while the latter attempts to impose on history a welter of theory and ideology, much of it hostile to the facts of that history into the bargain. It is no accident that in The Memory of Justice one hears again and again the distinct overtones of satisfaction in the answers to certain of Ophuls’s inquiries about America’s fallen moral estate, and no accident either that those inquiries are made regularly. One hears the former Nuremberg prosecutor Telford Taylor grapple with the question: After My Lai, after the Vietnam war, has the sense of his country as one that had the moral right to try the Germans at Nuremberg not had to be altered? Perhaps; not much; it is hard to say; yes, some changes in his thinking, Taylor manages to say, conceding and trying not to concede, twisting under the relentless weight, not so much of arguments about Vietnam as of contemporary political experience whose influences it would take a man of sterner stuff than Taylor to have withstood. Not that Taylor lacks stern stuff altogether. He lacks, rather, the admirable contempt felt by his fellow former prosecutor at Nuremberg, the Rt. Honorable Lord Hartley Shaw-cross, for those influences which have made it possible in our time to compare Nazi Germany’s planned program of genocide with the American intervention in Vietnam. The tonic moments in the new Ophuls film are few, but certainly one of them is the rejoinder provided by Shawcross to its extended hand-wringing and recriminations about the bombing of Dresden. Those who wage aggressive war must contemplate the possibility that they will be beaten, Shawcross observes in his unyielding, deliberate style: Dresden was the inevitable consequence of Poland, Amsterdam, Rotterdam, and Coventry.

But the Shawcrosses are few in the new Ophuls film, whose underlying vision and sentiment are weighted far more heavily in the direction of such as Daniel Ellsberg than of the prosecutors of Nuremberg, despite Ophuls’s much publicized assertion that his film was meant, in the end, to be an endorsement of Nuremberg. There is a side of Ophuls that intrudes on all his better intentions in this film, a side best and briefly described as an impulse toward anti-Americanism. He intended to make a movie that took up the admittedly complicated question of whether the victors in a war may in good conscience judge the vanquished. He fought a hard battle to rescue his film from editing that would have leaned too heavily on Vietnam footage and thus made too much of a parallel between the Nazis in Europe and the Americans in Vietnam. Still, having rescued his own film, it is now what he has made it. Ophuls intended a movie exploring the question of whether the victor ought to judge the vanquished and ended up making a movie that is a judgment on the victors. He intended to make a film that would in the end stand as an endorsement of the Nuremberg trials and ended with one that denies the legitimacy of Nuremberg at every turn, with every facile cut to Vietnam.

Among the less tonic moments in The Memory of Justice is the spectacle of Daniel Ellsberg relating with ill-concealed satisfaction his discovery that America was not, as he once thought, incapable of the evils he had heard were perpetrated by other countries. He had, Ellsberg notes in the film, felt himself lucky to be the citizen of a country that did not make him ashamed of its capacity for evil and atrocity, until the Vietnam war taught him otherwise. Particularly My Lai, Ellsberg adds, which was “equal to any field incident in World War II.”

To hear this from Ellsberg is, of course, to come directly into contact with the film’s obtuseness, not only Ellsberg’s own, which lets parallels of this nature stand. Ophuls is quick enough to intercede and ask corrective questions when the need is clear to him. (There is an altogether memorable moment when Telford Taylor murmurs that he was, of course, against the trial of Eichmann by the Israelis, particularly since—as he falsely charges—the Israelis allow for capital punishment only for the murder of Jews. Instead of calling him on this falsehood, Ophuls compounds it. Isn’t that a kind of racist law?, he asks, and Taylor responds to this encouraging suggestion with a quick affirmation.)¹

To make My Lai comparable, as Ellsberg does, to any “field incident” in World War II, is to distort history by suggesting that there is no difference between a random outbreak of officially condemned criminality such as occurred at My Lai, and an officially organized policy of extermination such as was carried out against the Jews by the Einsatzgruppen in every occupied territory of Europe. Nor is it surprising to hear this comparison of “field incidents” in World War II and Vietnam, for it is among the continuing passions of that part of the American political spectrum Ellsberg represents to discredit the idea of a unique evil perpetrated by Nazism and unequaled in history.

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Who are we to judge the Germans? That is the real question the film asks in its underlying search for equations and parallels in the world’s category of evils. Its view is best summed up by what we may take, by its placement, to be the film’s final word: Yehudi Menuhin’s observation that in ideal justice, judgment should come from the person who committed the crime. Here the film’s underlying, general hostility to Nuremberg, and more specifically to the idea of a morally triumphant America sitting in judgment on another power, is given its clearest voice—for surely by this standard, uttered at the end, Nuremberg’s was far from the ideal justice.

In the last five years of the Third Reich the executors and the planners of the Final Solution went energetically about their daily business—that being the systematic murder of millions of men, women, and children—while pursuing their lives as heads of households, husbands, fathers, lovers. It was of course precisely because these were men in whom the capacity for feeling guilt had been diminished to nothingness that they were thus able to carry on—indeed, to excel in their work. That their existence in history and the deeds they, along with various others in the dock at Nuremberg, helped perpetrate should be turned over, as this film implicitly does in the end, to a judgment of the level it is given to us to hear from Menuhin, is to make a mockery of the facts of that history, not to say of the film’s claim to seriousness.

¹ It is reported that Ophuls has now cut this sequence out of the film.