The premises of the Association of the Erased – a dilapidated warehouse from the socialist era – contrast sharply with the affluence of central Ljubljana just minutes away. The founder of the Association, Aleksandar Todorović, is articulate and bitter when he tells the story of his “erasure.” Todorović is an ethnic Serb who first came to Slovenia in 1977 to work on an archaeological project, and met his future Slovene wife. He left Serbia permanently in 1986 and settled in Slovenia, both republics of the Socialist Federal Republic of Yugoslavia (SFRY) at that time. Slovenia declared independence in June 1991. Todorović did not apply for citizenship in the new state, assuming that he would preserve his residence status and rights automatically. When he attempted to register the birth of his daughter with the local authorities two years later, however, he realized that he had been “erased” from the Registry of Permanent Residents without any notification, and was now an illegal alien in Slovenia. The officer destroyed his identification card and driving licence and informed him that as an illegal foreigner he could not be registered as the father. The covert act of the erasure was implemented in February 1992, and according to the latest official estimates, it affected at least 25,671 permanent residents of Slovenia. Reflecting on the plight of the “erased” over the years, Todorović speaks of “cleansing” and “fascism.”¹

I examine the case of Slovenia’s “erased” as an opportunity to interrogate in greater depth the model of ethnic citizenship and rule of law issues that it raises. In the first part of the book, I theorize ethnic citizenship as a form of differentiated membership defined in ethnic terms and enshrined in law, and distinguish between strategies of incorporation and strategies of exclusion employed by the nation-state in its institutionalization.² Citizenship in post-independence Slovenia could be productively analyzed through the lens of incorporation, and indeed scholars have examined issues such as constitutional nationalism and the constitutionally established hierarchy of autochthonous and non-autochthonous minorities in Slovenia along those lines (Hayden Reference Hayden1992; Deželan Reference Deželan2011: 23–27). These issues are important because they go to the heart of the question of who “owns” the state, and bring into light diffuse forms of discrimination that shape the operation of Slovenia’s model of ethnic citizenship. Nevertheless, I focus most of my discussion on the dynamics of exclusion as manifested in the case of the “erased,” partly because of the severity of the measure and its consequences for those directly affected, and partly because it captures in a microcosm the wider implications of ethnic citizenship for the rule of law.

The erasure signaled a suspension of the legal status and rights of thousands of lawful residents, de facto excluding from the protection of the rule of law more than 1 percent of Slovenia’s population. Moreover, the fact that the measure was implemented by executive decision and shrouded in secrecy for more than a decade further exacerbated the vulnerability of the “erased,” exposing them to arbitrariness and abuse of power by agents of the state. But the Slovenian case is also useful because it illuminates broader themes concerning the relationship between contemporary forms of ethnic citizenship and the rule of law. The discussion of ethnic citizenship in Chapter 1 already prefigures a set of tensions between domestic and international arenas, highlighting the role of international monitoring and adjudication of human rights violations engendered by various regimes of ethnic citizenship. The legal and political contestations over the “erased” in Slovenia afford an opportunity to complicate the analysis, suggesting a growing embeddedness of human rights norms in domestic legal processes and structures and pointing to a multiplicity of actors – international and local, legal and political, state and non-state – who become implicated on different sides of the controversy. A detailed examination of ethnic citizenship in Slovenia also helps understand how liberal democracies, notionally committed to norms such as non-discrimination, may end up pursuing a renationalization agenda by illiberal means, illuminating the broader phenomenon of “symbolic revaluation” of citizenship at a time when its substantive content is becoming increasingly deflated and the power of the state to shape collective identities is called into question.³

Underlying my analysis is a conception of citizenship that emphasizes its flexible character: the ambivalent role of law in formalizing the citizenship construct on the one hand, and in keeping it open to the possibility of change and transformation on the other. This flexibility and reliance on legal articulation enables the state to revise the terms of membership and realign citizenship with shifting national projects and identities. Igor Štiks’s (Reference Štiks2010) analysis of the evolution of citizenship in the former Yugoslavia is particularly illuminating in this respect, suggesting how historical and contemporary polities have harnessed citizenship as an instrument of state- and nation-building in the pursuit of diverse and sometimes opposing goals. Citizenship, he argues, has been used:

After discussing the erasure itself, I examine a set of broader dynamics of democratization, economic liberalization, and Europeanization in Slovenia since the 1980s, seeking to recover from these uneven transformations the pressures that have shaped the regime of ethnic citizenship and draw out its implications for the rule of law.

The Erased

Slovenia is often viewed as the only “success story” that emerged from the dissolution of Yugoslavia in the early 1990s. Fostering this image internationally was one of the priorities for the transitional elites around the time of independence. Indeed, the need to build international legitimacy was particularly acute given widespread concerns in the West about the implications of Slovenia’s secession from the federal state. In this environment, the political class ensured that the process of gaining independent statehood was legitimized by demonstrating respect for democratic principles and international human rights norms. The basis for declaring independence was the referendum of December 1990, in which an overwhelming majority expressed support for seceding from the SFRY. In preparation for the vote, a Statement of Good Intentions was adopted by parliament, seeking to reassure international publics and internal minorities that Slovenia was committed to protecting the rights of all residents without any discrimination. The Statement guaranteed the constitutional rights of the Hungarian and Italian minorities (Slovenia’s so-called autochthonous minorities), but also “to all members of other nations and nationalities the right to an all-embracing development of their culture and language and to all those who have their permanent residence in Slovenia the right to obtain Slovenian citizenship if they so wish.”⁴ The latter reassurances were directed at migrants from other Yugoslav republics, and in the spirit of the Statement they were encouraged to participate in the referendum alongside ethnic Slovenes. The constitution of the Republic of Slovenia enshrined the principle of equality before the law and guaranteed human rights and fundamental freedoms to everyone, building a rule of law paradigm in the foundations of the state.⁵

As part of the corpus of law that was adopted for Slovenia’s transition to independent statehood, the legislator provided a broad basis for acquisition of Slovenian citizenship by combining jus sanguinis and jus domicili principles. The citizenship framework of the SFRY included both federal citizenship, which all citizens of SFRY possessed, and republican citizenship in one of the constituent republics. This regime of “bifurcated citizenship” (Štiks Reference Štiks2010: 7) was largely inconsequential during the Yugoslav era, as federal citizenship established the equal rights and status of all Yugoslav citizens. When the federal state collapsed, however, republican citizenship acquired new significance, and unlike other republics of the SFRY, Slovenia had maintained detailed citizenship records at the republican level. The Citizenship of the Republic of Slovenian Act, adopted in June 1991, provided that all persons who possessed citizenship in the former Socialist Republic of Slovenia acquired Slovenian citizenship automatically. Article 40 of the Act enabled acquisition of Slovenian citizenship jure domicili for the 200,000 permanent residents from other Yugoslav republics, who comprised around 10 percent of the population:

The vast majority of eligible residents from other republics of the SFRY applied within the six-month deadline, and 170,000 of them acquired Slovenian citizenship through the process. At least 30,000 permanent residents, however, did not obtain citizenship. Years of systematic research conducted at the Peace Institute in Ljubljana have clarified the range of individual circumstances that led to this outcome and paved the way for the erasure. There were a number of reasons why these residents did not obtain Slovenian citizenship:

1. they did not apply for citizenship for various reasons (e.g., they missed the deadline, they chose not to apply and expected that they would keep their permanent residence in Slovenia, or they did not know they had to apply to prevent the loss of their permanent residence, etc.); or

2. they applied for citizenship, but their claim was rejected by the authorities (approximately 2,400 applications); or

3. they wanted to apply but the authorities refused to accept their application under the pretext that it was not complete; or

4. they applied for Slovenian citizenship, were issued a positive decision, but their citizenship was later withdrawn; or

5. they applied for citizenship and they never received an answer from the Ministry of the Interior.⁷

These individuals were caught in a legal limbo because the Citizenship Act did not provide for any procedure that would allow them to regulate their status, either by retaining their permanent residence or by acquiring citizenship after the six-month deadline. The only legal provision in place was Article 81 of the Aliens Act, which stipulated that the Act was to apply to all citizens of other republics of the SFRY who had not applied for Slovenian citizenship within the period of six months or whose applications had been rejected.⁸ Notably, the creation of a legal gap was anticipated in parliamentary discussions. In order to prevent this gap in the law, members of parliament from the Liberal Democracy of Slovenia Party had proposed an amendment to Article 81 of the Aliens Act, which would provide that residents from other former Yugoslav republics who did not apply for Slovenian citizenship would be issued permanent residence permits. The right-wing majority of the Democratic Opposition of Slovenia (DEMOS) voted down the proposal for the amendment, leading some observers to conclude that the subsequent enactment of the erasure was not some sort of mistake or omission but constituted a “purposeful political act of a discriminatory nature” (Dedić Reference Dedić, Dedić, Jalušič and Zorn2003: 47).

The provisions of the Aliens Act came into force on 26 February 1992, and on that day the erasure was implemented by the Ministry of the Interior ex officio. At least 25,671 former SFRY citizens lost their status as permanent residents and their names were erased from the register of permanent residents and entered into the register of aliens without a residence permit.⁹ In effect, overnight, the “erased” became aliens or stateless persons who were residing in Slovenia illegally. The ECtHR was seized with the issue in the Kurić case, and described the predicament of the erased in the following way:

The profile of those erased by the Slovenian authorities reflects the legal fiction of republican citizenship under the system of the former SFRY and a quasi-legal definition of who may be considered an “enemy” of the newly established Slovenian state. For example, children born to parents from two different republics who were not registered as Slovenian citizens should automatically have become citizens of another republic, but in practice republican-level citizenship records outside of Slovenia were often poorly maintained, and omissions became even more frequent once the region was engulfed by war. The war affected the “erased” in other ways, as well. In theory, citizens of former Yugoslav republics such as Serbia or Bosnia should have been able to acquire passports from the respective succession state; in practice, however, these states were cut off by ongoing hostilities and did not have any diplomatic representation in Ljubljana at that time (Dedić Reference Dedić, Dedić, Jalušič and Zorn2003: 60–61). After the military intervention of the JNA and the ensuing Ten Day War on the territory of Slovenia in the summer of 1991, a group of JNA officers found themselves on a list known as the “800 dangerous persons,” and the Citizenship Act was amended later that year to preclude such elements from acquiring Slovenian citizenship. As one observer put it, “Another group seriously affected were officers of the Yugoslav People’s Army who were designated as ‘enemies’ of, or ‘aggressors’ against, the newly formed state” (ibid. 62). The majority of the “erased,” however, were internal migrants within the former Yugoslavia, such as Serbs and Bosniaks, and a number of Roma.

The contradictory character of Slovenia’s citizenship policy in the wake of independence is as apparent as it is puzzling. On the one hand, the vast majority of permanent residents who were ethnic non-Slovenes were able to acquire Slovenian citizenship on the basis of the publicly adopted legislation and the procedures put in place for its implementation. On the other hand, the same body of law opened up the possibility for serious abuses and discriminatory policies adopted by executive decision and pursued covertly by the agents of the state. These contradictions can be comprehended as expressing a foundational tension between the rule of law and ethnic citizenship, each associated with powerful pressures that were set in motion at the time of gaining independence, and continued to pull in opposite directions throughout the period of transition. The issue of the “erased,” more than any other transitional challenge, makes legible the competing logics of liberal constitutionalism and nationalist mobilization that have contested the meaning of citizenship in the Slovenian state in public confrontations implicating the political class, legal institutions, and civil society. More importantly, the story of the “erased” calls into question complacent assumptions about the rule of law in the liberal state, suggesting how formal commitments to non-discrimination and state policies producing the opposite effect may coexist and even reinforce each other.

The “erased” remained invisible and did not attract public attention for more than a decade, each of them pursuing their own individual struggle for status and survival. But the debate over citizenship became a permanent fixture of Slovenian politics during that period. One of the issues was a legislative proposal to withdraw the citizenship of ethnic non-Slovenes, envisioning a referendum to reverse the process that had granted citizenship to residents from other republics of the former SFRY under Article 40 of the Citizenship Act. The debate was fueled by claims that these persons possessed dual citizenship, which put ethnic Slovenes in a disadvantaged position. The discussions in Parliament invoked a range of arguments against the “immigrants” and called for setting up specific procedures to determine “the veracity of [their] Slovenization” and to prevent “the emergence of any national minorities.”¹¹ In the end, the Constitutional Court intervened and put an end to the initiative, ruling that the request for a referendum on withdrawing citizenship was unconstitutional and contravened the principle of rule of law.¹² As it turned out, the decision was only the first in a series of interventions by the Constitutional Court on questions of citizenship; in particular, over the next decade and a half the Court was going to develop a large body of jurisprudence dealing with the “erased.”

Concerns about the issue started to appear in the annual reports of Slovenia’s Human Rights Ombudsman in the mid-1990s, noting that many individuals had difficulties regulating their status after being erased from the registry of permanent residents, and appealing for state action to resolve the problem (Jalušič and Dedić 2007: 107). The first decision of the Constitutional Court on the matter came in February 1999 in a case lodged by two individuals affected by the erasure that challenged the constitutionality of the relevant sections of the Aliens Act. The Court ruled that Article 81 of the Aliens Act was indeed unconstitutional because it created a legal void for citizens of the former SFRY (those with permanent residence at the time of independence who had not obtained Slovenian citizenship or whose applications had been dismissed), breaching the principles of rule of law, legal certainty, and equality, and gave the legislator six months to amend the law and regulate the special status of the affected persons.¹³ The decision led to the adoption of the Act Regulating the Legal Status of Citizens of Other Successor States of the Former SFRY in the Republic of Slovenia (Legal Status Act) later that year. The legislation provided a three-month period in which the “erased” could file an application for a permanent residence permit; however, the status was granted only for the period after an application had been approved and only those individuals who had resided in Slovenia without interruption since 25 June 1991 were eligible to apply.¹⁴ Simply put, this meant that those who had remained in Slovenia could not claim retroactive status from the time the erasure was implemented, whereas those who had left or had been expelled from the country could not claim any status at all.

The public silence about the “erased” was finally broken in 2002. The writings of Igor Mekina in the daily Večer and a press conference of the Association of the Erased on the tenth anniversary of the erasure propelled the issue into the public domain. At least some of the “erased” were mobilizing and pressing their demands collectively, and the media jumped on the story. A former constitutional judge, Matevž Krivic, assumed an active role in the legal representation and public advocacy on behalf of the “erased.” In the ensuing public discussions, journalists and lawyers became involved alongside civil society actors and the political classes on different sides of the controversy. In particular, a series of public contestations over the issue of the “erased” ended up implicating the major legal and political institutions of the Slovenian state, including the Human Rights Ombudsman, Constitutional Court, parliament, and government.

The main positions and actors in these contestations crystallized in the period following another decision of the Constitutional Court, issued in April 2003. The Court found that the Legal Status Act was unconstitutional, firstly, because it did not extend permanent residence retroactively from the date of the erasure and, secondly, because it did not regulate the acquisition of permanent residence for those who had been forcibly removed from Slovenia. The judges also struck down the three-month deadline for lodging applications for permanent residence, and ordered Parliament to amend the respective provisions of the Legal Status Act within six months and the Ministry of the Interior to issue supplementary orders to those who had already obtained permanent residence effective from 26 February 1992.¹⁵ The right-wing opposition, led by Janez Janša, accused the judges of taking over legislative powers and launched an attack on the center-left government, which had started to issue supplementary orders in line with the decision of the Constitutional Court. The effort of the government to resolve the issue was soon overwhelmed by the unleashed backlash from the right.¹⁶ Janša launched a campaign to put the issue on a referendum, and the ensuing discussions in the parliament and media became infused with nationalist and xenophobic rhetoric, prompting the Council of Europe to express concerns that “intolerance, and even xenophobia, are sometimes found among politicians and representatives of public authorities, and that some media contribute to the development of such attitudes.”¹⁷ The heated debate over the “erased” helped to galvanize nationalist sentiment and support for Janša, who became the next prime minister and promptly suspended the process of issuing supplementary orders (Deželan Reference Deželan2011: 17, 19).

The Human Rights Ombudsman, Matjaž Hanžek, found himself in the middle of the controversy. The ombudsman had requested the constitutional judges to speed up the case of the “erased,” and later publicly expressed his support for their decision. Speaking on national television, Hanžek denounced the proposal for a referendum on minority rights and argued that a Nazi referendum on the Final Solution in the 1930s, even if backed by the public, would not have changed the nature of Nazism. The statement unleashed a political storm and prompted right-wing politicians and media to launch an attack against him that lasted until the very end of his term in office. Hanžek’s public statements over the years on various controversial issues such as the “erased,” the rise of xenophobia, and the discriminatory treatment of members of the Roma minority provoked some parliamentarians to call for his impeachment and even for dismantling the institution of the Human Rights Ombudsman. When I met him in Ljubljana in the summer of 2007, Hanžek was still recovering from the relentless public campaign against him: “The Prime Minister [Janša] and the government attacked me repeatedly, saying that I was a traitor of the nation for publicizing information abroad, and asked me to apologize to the Slovenian nation.”¹⁸

It is ironic that three years later an official apology was issued to the “erased” in Parliament by the speaker, Pavel Gantar. The apology followed the arrival of a new center-left government in 2008, which resumed the process of issuing supplementary orders, and the adoption of amendments and supplements to the Legal Status Act in 2010, which finally sought to implement the decision of the Constitutional Court from April 2003. Once again, a familiar scenario played out in Slovenian politics: the right-wing opposition requested a referendum on the changes and the Constitutional Court ruled that a referendum would be unconstitutional. Looking back at the years since the issue of the “erased” first attracted public attention, the level of contestation and controversy that it has elicited – parliamentary debates, legislative initiatives, calls for a referendum, decisions of the Constitutional Court, and so forth – appears truly astonishing. Gantar’s apology to the “erased” recognized the human rights abuses they had endured over the years and validated their experiences of discrimination and injustice, but it raised as many questions as it answered. Why did the Slovenian state enact the measure in the first place? Why did it take so long to resolve the problem? And why did the issue become so contentious for Slovenia’s political classes, institutions, and public?

Recovering the Meaning of the Erasure

Hanžek believes that the erasure was ultimately an act of “revenge after victory,” pursued by nationalist dissidents-turned-politicians once Slovenia’s independence had been secured.¹⁹ A growing number of scholars have written about these issues in recent years, advancing a range of intriguing explanations and interpretations of the erasure. Tomaž Deželan makes an argument similar to Hanžek’s:

Vlasta Jalušič examines the circumstances of the “erased” in the context of a larger transition, one that is signaled by the collapse of multinational states and the construction of nation-states in Eastern Europe. In the course of the transition, she argues, the totalitarianism of the all-controlling state is replaced by a normalization of practices of discrimination and exclusion associated with “a different, much more dispersed totalitarianism of mass society and enforced homogenization” (Jalušič 2003: 13). On this argument, the events in Slovenia should be located within much broader political and social transformations and geographies.

In Jasminka Dedić’s (2003) more legalistic analysis, the spotlight is on the procedure for granting Slovenian citizenship and the systematic human rights violations that accompanied that process. The ensuing abuses, she argues, reflected both institutionalized forms of discrimination and a wider political consensus in the post-independence period, evident from the repeated appeals of mainstream political parties to disregard the decisions of the Constitutional Court. Brad Blitz is interested in the case of the “erased” because it reveals how the social construction of citizenship in periods of intense national homogenization may produce de facto statelessness. His study highlights the role of political activists and state-owned media in devising elite-driven cultural policies and their subsequent institutionalization in discriminatory citizenship law: “These actions sought to reposition Slovenia in opposition to the former Yugoslavia and reinforce the specificity of the Slovenian nation, at the expense of non-Slovenes living within its borders” (Blitz Reference Blitz2006: 454).

Jelka Zorn analyzes the issue of the “erased” within the process of consolidation of Slovenian ethno-nationalism since the late 1980s. In particular, she emphasizes the role of dissident intellectuals gathered around the journal Nova Revija in constructing a narrative of suppression of Slovenian language and culture within the SFRY, providing the basis for a critique of the federal framework and subsequent demands for self-determination. Crucial in this respect was the formation of new political elites around the time of independence, which drew heavily on that dissident base. Zorn directs attention to other key issues such as the advent of neoliberal policies, unemployment, and social insecurity, which in her view served both to mask practices of ethnic exclusion and provide a justification for them. The erasure is grasped at the intersection of two dynamics that are simultaneously at play, one associated with an ethno-nationally framed state-building project from “above” and the other with popular anti-immigrant sentiments from “below.” She notes that the issue of ethnic exclusion may be particularly stark in the case of the “erased,” but its effects extend well beyond that group: “In Slovenia, immigrants from other republics of the former Yugoslavia and their descendents were depicted as a threat to Slovenian culture and language. Although the majority of them managed to become Slovenian citizens, ethnic oppression towards them continued.”²⁰

Finally, the erasure has been examined as one element of a larger transformation of citizenship in post-independence Slovenia. Interpretations of the broader terrain of Slovenian citizenship have often converged on employing the analytical framework of the “nationalizing state” advanced in the work of Rogers Brubaker (Reference Brubaker1996), which highlights the centrality of the “core nation” concept and the range of practices of political elites and bureaucracies in asserting its “ownership” of the state. Its logic allows for the countervailing force of international legal norms and standards, but only to the extent that their incorporation represents a deliberate attempt on the part of national elites to foster the international legitimacy of the state, construed as a set of external constraints rather than an outcome of productive internal pressures and struggles. This is how Zorn (Reference Zorn2009), for example, reinterprets the erasure in her more recent work. In his detailed analysis of the trajectory of Slovenia’s citizenship regime over the past two decades, Deželan (Reference Deželan2011) arrives at similar conclusions. He discerns the logic of nationalization operating across the various dimensions of citizenship policy and politics in Slovenia, from the regulation of dual citizenship and statelessness to the treatment of minorities and refugees. The erasure is only one manifestation of the logic that pervades this broader citizenship domain, where citizenship is understood as “membership in a ‘nationalising state,’ which is dominated by the principles of an ethno-cultural conception of nationhood primarily promoted by a right-wing political elite and constrained by its integration into the European Union and the wider international community” (Deželan Reference Deželan2011: 36).

In the remaining part of this chapter, I seek to recover the meaning of the erasure and the events that preceded, accompanied, and followed its implementation by drawing on three narratives of transition. These narratives capture three fundamental shifts that have unfolded concurrently and converged to reshape Slovenian politics, society, and identity in the course of a triple transition from authoritarian to democratic rule, socialist to capitalist economic order, and Yugoslavia to Europe. My analysis seeks to highlight the uneven and conflictual nature of democratization, economic liberalization, and Europeanization in the Slovenian context in order to map the contradictory pressures that have been engendered by each of these processes and understand how these pressures, in turn, have shaped the paradigms of ethnic citizenship and the rule of law and the emergence of the “erased” as an issue that manifests their incompatibility and tension.

Democratization

Slovenia’s secession is often seen as a catalyst for the disintegration of the former Yugoslavia, paving the way for a series of separatist claims and bloody wars that ended up engulfing most of the region. It is ironic that perhaps more than any other republic of the SFRY, Slovenia’s road to secession during the 1980s was marked not by the resurgence of nationalism, which came late in the day, but rather by the emergence of a vibrant civil society that took the form of alternative ideas, autonomous spaces, and demands for human rights and democratic politics. The rise of social movements around issues such as peace, punk, feminism, sexual minorities, conscientious objection to military service, and the environment reflected an aspiration to redefine the relationship between state and society – not the relationship between Ljubljana and Belgrade. These new spaces of debate and dissent developed independently from the state and party apparatus, but also, for most of the decade, remained resistant to nationalist framing and appropriation. Indeed, many of the key actors in the awakening of civil society recall with chagrin the “nationalizing” of the spaces they had carved out and ultimately of Slovenian politics itself. In their accounts, the resurgence of nationalism emerges more as an outcome than a cause of Slovenia’s push for independence.

Tomaž Mastnak (Reference Mastnak, Benderly and Kraft1994), a youth activist at the time, relates how the “alternative scene” and media that appeared in the early 1980s constructed a civil society discourse centered on the idea of plurality, which underscored the significance not of party politics but of social movements and civic initiatives and demanded respect for the rights of women and sexual, ethnic, and religious minorities. As the authorities in Slovenia became increasingly willing to accept and adapt to this process of internal pluralization, the tension with the centralizing forces operating at the federal level became more apparent. The pressures from Belgrade encouraged the convergence of civil society and reformers in positions of power at the republican level, and democracy became a national project: “Because sovereignty is, strictly speaking, indivisible, its politics are bound to be exclusionary; the fact that democratic society as it was formed in Slovenia needed national sovereignty in order to be able to survive was detrimental to its communications across internal Yugoslav borders. To a degree, Slovene politics became the mirror image of Serbian exclusivism” (Mastnak Reference Mastnak, Benderly and Kraft1994: 107).

Vlasta Jalušič (1994), a prominent feminist activist and public intellectual, tells a similar story. She recalls how women’s groups and concerns became increasingly marginalized in the so-called Slovenian Spring in the late 1980s. The mass movement that came to the fore at that time had its origins in the rich tapestry of earlier civil-society movements and struggles, when only one intellectual circle had championed the national issue and sought to put it on the agenda. Jalušič suggests that the turning point for pluralist civil society was the Trial of the Four in June–July 1988. Janez Janša and two other journalists from the dissident weekly magazine Mladina were preparing a story based on a leaked document of the Ljubljana Military District, which outlined a plan for introducing martial law in the republic. Together with the JNA officer who had leaked the document, the three journalists were tried by a military court in Ljubljana, and the proceedings were conducted in Serbo-Croatian. The trial provoked a storm of public protest and mobilization throughout the republic, spearheaded by a broad civil society coalition that called itself Committee for the Defence of Human Rights.

In some sense, the figure of Janez Janša could be seen as emblematic of the wider transformation that took place in Slovenian politics and civil society around the time of secession from the SFRY. Janša’s career in the 1980s started as an activist in the communist youth organization and later a defense correspondent for the dissident magazine Mladina. In the course of the events that culminated with the Trial of the Four, Janša became well known for his radical anti-JNA and antimilitaristic views. Subsequently, however, he was appointed as the first post-independence minister of defense in the DEMOS government, and observers have noted that his approach during the Ten Day War of 1991 became so belligerent that the president, Milan Kučan, had to intervene and tame him.²¹ This is how James Gow and Cathy Carmichael (Reference Gow and Carmichael2000: 162) describe the nature of Janša’s remarkable transformation:

The logic of the struggle for national independence and spectre of violence raised by the Ten Day War – both of which played out in the context of an increasingly repressive and hostile federal state – helped eclipse the richness and pluralism of Slovenia’s democratization movement and channel it in the imperative pursuit of national sovereignty. Opposing a Milošević-dominated Yugoslav state meant many different things in Slovenia at that time; democratic politics was associated with multiple civil society struggles, spaces, and agendas, which over time became increasingly tolerated by the communist elite in Ljubljana. As the question of national sovereignty gained momentum and the need for nation- and state-building came to the fore, however, powerful statist and nationalist forces were set in motion and pluralist civil society began to retreat. Some of the civil society actors from the earlier period adapted to the new environment by joining political parties and assuming positions of power; many others created NGOs, sought refuge in academia, or retreated from the public sphere.

In this changing context, one intellectual current from the civil-society scene became particularly important. By the mid-1980s a number of dissident intellectuals with nationalist leanings had gathered around the journal Nova Revija. In February 1987, the fifty-seventh issue of the journal published their “Contributions to a Slovene National Programme,” which notably included a call for gaining independence from the SFRY. In his contribution to the volume, Dimitrij Rupel, who later became minister of foreign affairs in the government that implemented Slovenia’s secession, argued that Slovenian had become a second-class language in Yugoslavia, and articulated an ethnocultural understanding of a revived Slovenian nationhood (Rupel Reference Rupel1987). Some scholars have emphasized the importance of these ideas for understanding subsequent developments in Slovenia, including questions about citizenship and the “erased,” noting that “certain ideas of the intellectual circle of Nova Revija are firmly embedded in the Slovene political system and political culture.”²² Mastnak, however, insists that when the National Programme first appeared, its impact was much greater in the rest of Yugoslavia than in the democratic movement in Slovenia itself: “Only later, when, with Demos, people from the journal’s circle came to power, did the ‘Contributions’ become an historic event” (Mastnak Reference Mastnak, Benderly and Kraft1994: 106). In the intellectual milieu of dissent and alternatives that emerged in Slovenia in the 1980s, the ideas and figures associated with Nova Revija represented only one position among many. Some have even questioned the authenticity of the National Programme, suggesting that it was simply a response to the Memorandum of the Serbian Academy of Sciences and Arts issued in 1986, which provided a platform for the resurgence of Serbian nationalism.²³ Whether the articulation of Slovenian nationalism in the “Contributions” represented a mere reaction to events in Belgrade or not, its significance was initially limited by the fact that it represented the views of one of the many currents in Slovenia’s democratic movement; it gained momentum only with the Trial of the Four, Ten Day War, and emergence of some of its protagonists as key political actors in the post-independence dispensation.

The peculiar articulation of ethnic citizenship in Slovenia is illuminated by this uneven and unpredictable trajectory of democratization. The ethos of the civil society movements, which associated democracy with pluralism and respect for minorities, coexisted with a conception of democracy that conflated “ethnos” and “demos.” The fact that the new Slovenian state allowed the vast majority of non-Slovene residents to acquire citizenship, whereas the erasure targeted a smaller group and was implemented covertly, is perhaps indicative of the relative strength of the two positions and traction of these alternative understandings of the meaning of democracy prior to gaining independence. The question of membership in the political community was more closely intertwined with ethno-national belonging once the multiplicity and autonomy of the cultural sphere became eclipsed by concerns for sovereignty and statehood. Slovenian nationalism itself could be seen as oscillating between pluralist and exclusivist conceptions, the former dominating public discourse in the 1980s and the latter becoming more salient from the early 1990s. Its transformation and radicalization in the period of transition can be detected in debates over the proposed denaturalization of ethnic Slovenes in the mid-1990s and more recently over the “erased,” which have often been accompanied by the unleashing of populist and xenophobic rhetoric in the parliament and media.²⁴ But the intensive public contestations and controversies elicited by the issue of the “erased” over the years could also be grasped in relation to the genealogy of the democratization process in Slovenia. On this reading, the earlier tension between the pluralism of the civil society movement and the monism of the national question, which goes back to the 1980s, becomes recast as a tension between pluralist and ethnic understandings of democracy in the new dispensation of independent Slovenia.

Economic Liberalization

The convergence of processes of democratization and nationalization, and in particular the harnessing of the former for the purposes of the latter, could be seen as a somewhat unexpected and far from predetermined outcome of Slovenia’s transition to independent statehood. Another set of forces that shaped Slovenia’s transition, however, had a much more decisive direction and reflected far-reaching processes of economic liberalization and integration of postcommunist states in the global economy. These forces have operated in more diffuse ways at the level of economy and society, below the surface of Slovenia’s citizenship policy as such; nevertheless, their impact on the regime of ethnic citizenship is recovered in scholarly accounts of prevalent attitudes and discourses, both before and after the erasure became publicly known and acknowledged. In particular, they have tended to reinforce negative attitudes toward migrants and refugees from the other republics of the former SFRY and strengthen the appeal of the populist rhetoric of the right, which in recent years has reframed for public consumption the intentions of the “erased” by suggesting that their struggle for recognition is driven by an exploitative economic agenda.

By the summer of 2007, when I arrived in Slovenia to start my field research, the vast majority of the “erased” that had remained in the country following the implementation of the measure had managed to regulate their status, either by obtaining Slovenian citizenship or securing permanent residence. At that stage, the thrust of their claims and legal struggle centered on the question of retroactivity. Restoring the status of all those affected by the erasure retroactively from February 1992, as required by the decisions of the Constitutional Court, was seen by some of the “erased” as amounting to an official recognition of the injustices perpetrated by the Slovenian state. In this sense, addressing the issue of retroactivity was interpreted as an official validation of their suffering and became invested with symbolic significance. The flip side of the question of retroactivity, however, involved the possibility for compensation claims for harms incurred as a result of the erasure, in particular for the infringement of social and economic rights related to loss of employment, housing, social security, pensions, children’s allowances, and health care. The potential basis for such compensation claims by the “erased” can be glimpsed from the story of Irfan Biširević, a Bosniak who moved to Slovenia with his family when he was one year old. As a result of the erasure, he lost both his job and his health insurance, and over the years was unable to have vital surgeries on his legs and eyes. By the time I met him at the premises of the Association of the Erased, Biširević was permanently disabled as a result of complications that were preventable if he had been able to access health care: “On 13 October 2003,” he told me, “I was finally granted Slovenian citizenship, but my health was already destroyed.”²⁵

Much of the continuing hostility against the “erased” among the Slovenian public may well be motivated by inflated fears that the state is asked to make enormous compensation payments to “Southerners” with the tax money of “hard-working Slovenes.”²⁶ In such popular narratives, often encouraged by right-wing politicians, the workings of nationalist sentiment and economic grievance coalesce in ways that are impossible to disentangle in any meaningful way. The Third Report on Slovenia of the European Commission against Racism and Intolerance (ECRI), published in 2007, relates these developments:

For students of the SFRY, narratives invoking the spectre of economic predation by Southerners may be reminiscent of debates going back to the 1980s. Slovenia was the most economically developed republic in the former Yugoslavia at the time and as such it made significant contributions to the federal fund established to provide economic assistance to the less-developed republics and regions of the SFRY. Ljubljana repeatedly contested such payments to Southern regions such as Kosovo and Bosnia. As observers have noted, “Before 1989, the only aspect of Slovenia’s economic problems that explicitly called its relationship with the rest of Yugoslavia into question was the much complained about aid to less developed regions” (Kraft et al. Reference Kraft, Vodopivec, Cvikl, Benderly and Kraft1994: 201). Although the circumstances that may be engendering a sense of economic exploitation among the Slovenian population are very different in the case of the “erased,” there are significant similarities in the framing and traction of these narratives expressing economic grievances against Southerners.²⁸

But there are also important structural factors associated with Slovenia’s economic transition after 1991, which favored popular acceptance of the model of ethnic citizenship and its normalization in Slovenian society. The process of economic liberalization and restructuring – from the self-management model of the former Yugoslavia to a full-blown market economy – was accompanied by a deflation of the welfare system and steep increase in unemployment, precipitated by privatization of some enterprises and closing down of others.²⁹ Zorn discusses the resulting “unemployment crisis” as one of the reasons why the plight of the “erased” remained invisible in the 1990s, becoming “somehow lost in the sea of other changes, which were also neither transparent nor foreseeable” (Zorn Reference Zorn2009: 293). Other scholars have underscored developments such as the mobilization of exclusionary identity politics as a response to the rise of economic inequalities and social cleavages in the transitional period. Peter Klinar (Reference Klinar, Adam and Tomc1994), for instance, notes that as the share of the poor was increasing, class conflict started to take the form of strikes and mass protest. He emphasizes the strategies deployed by Slovenia’s political classes in seeking to deflect such grievances and conveys a trend toward a growing overlap of ethnicity and social class, rooted in the broader economic transformation:

The Yugoslav wars of disintegration further contributed to these convergent dynamics of social and ethnic stratification in post-independence Slovenia by stimulating the emergence of xenophobic public discourse targeting refugees from the war-affected areas of the former Yugoslavia, which has intensified and subsided at various junctures since the early 1990s. Economic concerns emphasizing the strains on the Slovenian state in dealing with the “refugee crisis” have provided one source of tension, but the public conversation has also been shaped by allegations of prostitution and other criminal activities.³⁰ Observers have noted the persistence of negative attitudes toward refugees in Slovenia and the tendency over the years to portray them “as a threat to society, law and order, and later the nation-state” (Deželan Reference Deželan2011: 22).

The far-reaching consequences of economic transition and liberalization cannot explain the emergence of a regime of ethnic citizenship in Slovenia, but they help to illuminate a set of broader pressures that have shaped its operation and traction in Slovenian society. These pressures have contributed to the lengthening social distance between ethnic Slovenes and non-Slovenes in ways that both encouraged and justified various practices of discrimination and exclusion with respect to ethnic minorities, refugees, and migrants. By the early 1990s, the implications were already visible in public attitudes regarding employment opportunities, which in some sense mirrored the nationalizing logics operating in the domain of citizenship: “There is a widespread opinion that immigrant workers should be dismissed from employment before ethnic Slovenes” (Klinar Reference Klinar, Adam and Tomc1994: 108). The articulation of ethnic citizenship serves to formalize certain exclusionary and discriminatory practices but such practices may be overlooked, normalized, or indeed openly defended much more easily in an environment where larger socioeconomic forces are encouraging similar dynamics from another direction.

Europeanization

Europe has played an ambivalent role in the articulation of Slovenian nationhood and the regime of ethnic citizenship during the period of transition. This ambivalence stems in part from the emergence of Europe as a compass for the reorientation of Slovenian national identity, first with respect to the former Yugoslavia and later in relation to the EU. But it also reflects the tangible impact of European scrutiny, monitoring, and pressure in the initial determination of citizenship rules and the role of subsequent interventions of the European Commission, Council of Europe, and ECtHR in resolving the issue of the “erased.” The uneven trajectory of the process of Europeanization, by which I mean Slovenia’s transition from the “Balkans” to “Europe” and from Yugoslavia to the EU, captures yet another set of pressures that have affected the implementation of the erasure and shaped its handling by the state as an issue of domestic and international concern. This final narrative of transition is invoked here to illuminate the complex interplay of nationalizing and Europeanizing dynamics in the Slovenian context, seeking to understand how such interactions have impacted the tension between ethnic citizenship and the rule of law.

In the drive to independence and the ensuing transformations of Slovenian statehood and nationhood, Europe quickly emerged as a key marker of differentiation from the rest of the former Yugoslavia and a symbol of Slovenia’s cultural and political revival. Enacting the symbolic shift from the Balkans to Europe became a central priority for the transitional elites, as underscored in the recollections of Dmitrij Rupel, Slovenia’s minister of foreign affairs 1991–1993: “After persistent and tiresome lobbying with the European and other governments, Slovenia managed to project the image of a peaceful and cooperative country, distinct from the rest of the former Yugoslav republics” (Rupel Reference Rupel, Benderly and Kraft1994: 193–194). One of the implications of such efforts to Europeanize Slovenia’s international image and self-understanding involved the articulation of particular narratives of identity and difference, premised on a sharp contrast between a peaceful and progressive Slovenia and the backward, warring states and peoples of the Balkans. Indeed, the reimagining of national identity that accompanied Slovenia’s symbolic “return to Europe” appeared to entrench a set of cultural stereotypes, which have remained salient in public discourse throughout the period of transition:

Ironically, the desired cultural leap ended up triggering its own set of anxieties about Slovenian culture and identity. Membership in the EU quickly emerged as a consensus project for the transitional state and Slovenia’s political classes channeled their energies toward that objective, which was finally accomplished with the country’s accession to the EU in 2004. As the prospect of accession became increasingly tangible and within reach, however, the significance of European integration started to shift and public discourse focused on the dangers of EU membership for Slovenian culture and identity. As one observer put it, “The debates on EU membership rarely if ever address the benefits and costs; the all-pervasive topic about the EU in political speeches, presidential addresses, and TV round tables is invariably the hypothetical danger of imminent ‘loss of Slovenian identity’ in the EU” (Šumi Reference Šumi2004: 78). These developments draw attention to the complex implications of Europeanization for Slovenian national identity, highlighting its capacity to engender and support divergent dynamics of nationalization in the cultural field.

The role of Europe is also crucial for understanding the specific circumstances of the implementation of the erasure and the more general tension between ethnic citizenship and the rule of law. European pressures around the time of declaring independence ensured Slovenia’s formal compliance with international law in handling transitional citizenship arrangements. In the summer of 1991, Western governments supported a solution to the Yugoslav crisis within the framework of the federal state and discouraged calls for independence. The European position effectively meant that if Slovenia’s bid for international recognition was to succeed, the state had to demonstrate respect for human rights norms and democratic principles. In these circumstances, even nationalist political groupings acknowledged the need to extend Slovenian citizenship to residents from other republics of the SFRY. Lev Kreft, an active participant in the parliamentary and public discussions at the time, recalls the understanding of the political classes: “We knew, and it was written in all documents and declarations, that if we wanted to get international recognition, we had to do everything concerning the independent state according to international law.”³¹ The combination of international scrutiny and domestic awareness of its implications suggests one way of grasping the contradictory features of the citizenship regime that emerged in Slovenia. The European pressures were reflected in the adopted citizenship legislation, premised on respect for human rights and the principle of non-discrimination, but also in the fact that the erasure was implemented by executive decree and shrouded in secrecy.

Since then, a range of European actors have become involved in the issue of the “erased” and in various ways have shaped the evolving legal articulation and politics of citizenship. As in the other successor states of the former Yugoslavia, the evolution of Slovenia’s citizenship regime has been embedded in what Jo Shaw describes as “a ‘constitutional mosaic’ of overlapping and sometimes competing legal norms,” derived from a range of national, European, and international sources (Shaw Reference Shaw2010: 1). The ambivalent role of Europe is underscored once again by considering the mechanisms through which Slovenia’s compliance with international human rights norms has been encouraged by various institutions of the EU and Council of Europe. In theory, such compliance should have been ensured through the accession conditionality of the EU, which involved extensive monitoring and reporting on Slovenia’s progress by the European Commission. In practice, although the pre-accession process opened up space for raising the issue of the erased and exerting some pressure, Slovenia was able to join the EU without changing its citizenship policy regarding the “erased” in a way that demonstrated respect for international norms and the decisions of the Constitutional Court (Shaw Reference Shaw2010: 22; Deželan Reference Deželan2011: 33).³² In this sense, at least, the process of Europeanization appeared to expose the tension between ethnic citizenship and the rule of law in Slovenia, but failed to resolve it.

Once the erasure had attracted public attention, the Council of Europe also became involved in the issue and helped keep it on the agenda by drawing on the human rights instruments at its disposal.³³ Most significantly, in May 2007 the ECtHR admitted the Kurić case brought by eleven “erased” persons against Slovenia – three Serbian nationals, two Croatian nationals, two nationals of Bosnia and Herzegovina, and four stateless persons.³⁴ The act of the erasure itself was considered inadmissible because it was implemented before 1994, when Slovenia had acceded to the European Convention on Human Rights; however, the Court decided to consider the issues of retroactivity of permanent residence status and denial of effective remedy. Seeking to preempt an unfavorable decision of the Court and deflect international attention at a time when Slovenia was preparing to take over the presidency of the EU, the Janša government drafted a constitutional bill that foreclosed the possibility of granting retroactive status and tried to overrule the relevant decisions of the Constitutional Court. The proposed legislation wasn’t adopted but it managed to trigger a political storm, eliciting criticism from the parliamentary opposition and a coalition of human rights organizations, which included the Peace Institute, Legal Information Centre for Non-Governmental Organisations, Equal Rights Trust, and Open Society Justice Initiative.³⁵ These organizations became involved in advocacy on behalf of the “erased” and intervened as third parties in the proceedings before the ECtHR.

The judgement in Kurić and Others v. Slovenia was issued on 13 July 2010. The Court found a violation of Article 8, guaranteeing a right to respect for private and family life, and a violation of Article 13, a right to effective remedy. The Court ordered the Republic of Slovenia to “secure to the applicants the right to a private and/or family life and effective remedies in this respect.” Significantly, the judges ruled that the question of compensation for damages resulting from the violations “is not ready for decision,” and reserved that question for future consideration.³⁶ It remains to be seen what exactly will be the implications of the Court’s decision to leave open the question of compensation. The involvement of the Court certainly reinforced the ongoing process of issuing supplementary orders granting retroactive status to the “erased,” in line with the legislative changes and official apology adopted in 2010. This process may be closing one chapter in the decade-long controversy surrounding the “erased” but it may be opening another one, propelling the contentious issue of compensation claims on the agenda.

Conclusion

Slovenia offers a cautionary tale about the relationship between nationalism and the rule of law at the current juncture. At a time when struggles for democracy are back on the agenda and we may be witnessing the rise of another wave of political transformation and integration of states in the global economic order, both the temptations and dangers of the model of ethnic citizenship need to be fully appreciated as we think about the implications of democratization and economic liberalization. In many states with established liberal democratic institutions, harnessing citizenship as a symbolic resource in shaping collective identities may be equally tempting and dangerous: once the retreat of the rule of law is set in motion by succumbing to such temptations, reversing and redressing its consequences is a daunting task. In the context of global processes that encourage contradictory trends of denationalization and renationalization of citizenship, and continue to deflate the substantive aspects of citizenship while reinforcing its symbolic value for the nation-state, the story of the “erased” in Slovenia retains its relevance as a reminder of the lasting appeal of ethnic citizenship and the challenges it presents for the rule of law.