Thursday, April 01, 2004

Taking Issue With Judge Korman

In his recent opinion explaining why his distribution plan provides that three-quarters of the excess funds set aside for Jews from the Swiss bank settlement should go to elderly Jews in the Former Soviet Union, Judge Edward R. Korman of the Federal District Court in Brooklyn relied substantially on a needs assessment prepared by a team of Brandeis University scholars for the Joint Distribution Committee (JDC). I raised questions last week about this approach. While Judge Korman’s task is daunting, there are important issues about his formula that need to be addressed.

The underlying assumption of any plan to allocate excess Holocaust funds to Jewish survivors is that the recipients are Jewish. They must obviously also be survivors of Nazi tyranny and elderly. It’s easy to figure out who meets the last criterion; determining who is Jewish and also a survivor is a good deal more difficult.

There is sharp disagreement over the number of Jews in the FSU. Russian and Ukrainian governmental censuses have yielded low numbers, but some demographers have produced estimates that are above one-million people. Without reliable surveys, it is not possible to clarify the issue. It follows that we do not know how many elderly Jews remain in the FSU.

Even before the collapse of Communism fifteen years ago, there were benefits to USSR residents who asserted Jewish identity, which represented a sharp reversal of the pattern that had prevailed for at least two generations. Being – or claiming to be – Jewish made it easier to obtain an exit visa. Israel took in more than one-million such claimants, only to learn that many were not Jewish. For Jews who still live in the FSU, Jewish identity opens the door to community-sponsored social services, including the large-scale Hesed programs established by the JDC. These programs have been and will continue to be primary recipients of the excess funds under Judge Korman’s jurisdiction. It turns out that a great number of Hesed participants do not meet one or more of the basic requirements.

According to the Hesed data provided in the Brandeis report, 44% of its clients are not Nazi victims or survivors. The figure may be higher because Hesed services persons as young as fifty-five and they cannot be survivors. In the tens of thousands, there are Hesed clients who are not Jewish, even according to the loose definition employed by JDC. It estimates that “30% of those clients who do not identify themselves as Jews (all non-victims) are actually Jewish, but choose not to identify themselves as Jewish.” This claim is counter-intuitive and, I believe, wildly inaccurate in view of the tangible benefits that now accrue to those who assert Jewish identity.

However we look at the numbers, a significant proportion of Hesed clients are not eligible for excess Holocaust funds if such funds are earmarked for Jewish survivors. Because money is fungible, it makes little difference whether Judge Korman instructs that excess funds received by JDC go only to Jewish survivors.

Any effort to identify Nazi victims is sensitive and fraught with complications. The standard employed by Judge Korman is whether Nazi actions resulted in harm, direct or even indirect, to Jews. The excess funds are being distributed to Jewish survivors who are members of what is called the “Looted Assets Class,” which Judge Korman identifies as “incredibly large.” He quotes approvingly the assessment of his Special Master that “there is scarcely a victim of the Nazis who was not looted, and on nearly an incomprehensible scale.” Accordingly, he assumes “that all survivors of the Holocaust are valid members of the Looted Assets Class.”

This assessment turns history on its head. Large parts of Russia – and other USSR regions where Jews lived – were not under Nazi control and there could not have been Nazi looting of Jewish assets. In fact, looting there was and on an incomprehensible scale because the Soviet Union was a ruthless totalitarian state whose Communist regime looted private property. With exceptions, Jews in the USSR could not have lost assets through Nazi looting because they scarcely had any to lose. It was the Soviets who impoverished the Jews and the rest of the population.

In effect, in order to help FSU Jews who need help we are distorting history and using funds intended to compensate those who were looted by the Nazis to compensate those who were looted by the Communists.

I am not unmindful of the situation of FSU Jews, nor am I uncaring. Some of my work now involves Russia and Ukraine and I expect to make another trip within the month. Elderly Jews in these countries need help, notably improved medical care, and Holocaust funds should be used for this purpose, but not to the extent contemplated by Judge Korman. The claims of Israel are strong because it is the Jewish State and a great number of ex-FSU Jews now live there.

There is also an obligation to consider the emotional needs of American survivors. In the aggregate they are leap years ahead of FSU Jews economically, yet they bear emotional and physical scars that must not be ignored. There is a great difference between an elderly Jew living in the Soviet Union who was indirectly affected by the Holocaust and someone who was in Auschwitz or other death camps, witnessed the murder of Jews and in all likelihood close relatives and who bears the concentration camp numbers etched until death into his or her skin.

For far too long, Holocaust funds have been controlled by organizations that have used survivors as pawns as they have indulged in cronyism and luxurious living. At times, they have been complicit in the looting of survivor assets. Swiss settlement funds should be made available for the many elderly survivors in the U.S. who need assisted living facilities and such funds also should go directly to the successor communities of European survivors whose property was looted and who for more than half a century have provided meaningful services to their members who have survived.