ICG Bosnia are reliably informed that, following a visit recently to Sarajevo by members of the Contact Group, the Governments concerned (US, UK, France, Germany, Italy and Russia) have decided that elections should be held on 14 September. (The news was revealed confidentially to OSCE staff only on 15 May and has not yet become public knowledge, though it is sure to leak soon). This decision has still to be approved formally by Ambassador Cotti of Switzerland as the current Chairman of OSCE before an announcement is made. OSCE recognise that all the conditions set out in the Dayton Accords will not be obtained by mid-September but believe that to delay the elections would do more harm than good (see Annex). Although it will require a further mammoth effort of preparation, OSCE also believe that they will be technically ready for the conduct of the elections. OSCE will issue a statement to accompany the decision which will stress that these elections are only the beginning of a democratic process and not an end in themselves, and will express the belief that, although conditions are not ideal enough, progress towards them has been made to make holding the elections possible. (It is likely that the OSCE announcement of the date will be made on 20 May).

There are, of course, still many potential hazards in the way. The outcome of the present power struggle in the Republika Srpska (on which we will send an assessment shortly) is far from clear, but if the moderates emerge in a stronger position this would influence the conditions for elections there. Moreover, the opposition parties in the Federation are still threatening a boycott in protest at one of OSCE's regulations regarding absentee ballots.

OSCE have given careful thought to delaying holding the municipal elections, for which they have no specific mandate but are merely asked to conduct "if feasible", but concluded that, although it would ease their technical preparations, the opposition parties would probably fare better if they were held at the same time as the general elections. They excluded delaying the cantonal elections because the delegates to the House of Peoples are elected from the members of the Cantonal legislatures. Any delay would also affect the departure date for IFOR as its protection is part of the requirement for free and fair elections (see Annex C).

A further point to be borne in mind is that, although the election date is 14 September, the results will not be announced until 7-10 days afterwards as it will take this amount of time to collect and mix in the ballot papers cast by displaced persons with those cast in the constituency of their origin. Against this background of a firm decision taken by the Contact Group with the probable endorsement of the other members of OSCE, it would serve no useful purpose, indeed it would be more likely to be counter-productive, for ICG to attempt to campaign for a delay until conditions were more propitious. In our view, we should use the time until September to continue to press for action to secure the detention and delivery to the International War Crimes Tribunal of those indictees whose continued freedom constitutes the major obstacle to free and fair elections as well as an affront to the rule of international law. ICG Bosnia have reliable information that Karadzic and some of his cronies are very worried about their safety. It is important to maintain the pressure by every means possible. Some Governments are already bringing their influence to bear on Yugoslav President Milosevic to positive effect. High Representative Carl Bildt has also made significant attempts to undermine Karadzic's position. All these efforts are worthy of public endorsement and support, which is manifestly absent.

Similarly, ICG should give support to other efforts to create the best possible conditions for holding elections in the main areas of freedom of movement and expression on which we are working up strategies separately.

Nicholas Hinton

CONDITIONS FOR DEMOCRATIC ELECTIONS

According to Annex 3 of the Dayton Accords, the Organisation on Security and Cooperation in Europe must decide whether the prevailing conditions will allow for elections to be free and fair (see Annex B). These conditions have been summarised by OSCE in the following terms to which ICG add a commentary on the likelihood of their being met:

• A politically neutral environment. The environment remains politically highly charged, particularly while indicted war criminals are at large and in or near positions of power, and is likely to increase in polarisation the nearer elections are.

• The right to vote in secret. This right is written into electoral laws of 1990 and will be guaranteed under OSCE's supervision.

• Freedom of expression and access to the media for all wishing to participate in the electoral process. The position in the two entities is different. In the Republika Srpska the regime exercises total control over the main medium of television, though there is some penetration by television from neighbouring countries. It also controls the press and radio, though there are two minor independent newspapers in Banja Luka with tiny circulations. In Croat federal territory the HDZ party is in complete control of the media. In the Bosniak areas there is a wider spectrum of media, much of it financed by international agencies, and virtually all those seeking an outlet can find one. However, the important mass medium of television is still dominated by the SDA party, although it is not overtly biased at the expense of other parties and there are small local television and radio stations catering for opposition parties. With the help of international agencies, such as the Soros Foundation, Internews and the BBC (funded by Britain's Know-how Fund), courses are being arranged for training journalists in objective reporting, particularly of election issues. With international support, a new TV Channel 2, funded already by the Soros Foundation and the US Government and potentially by others at a pledging conference on 22 May, is being set up which will be visible across the whole of B&H; but will probably not give complete coverage before the elections. Meanwhile, an arrangement is being made for parties to have access to a network of small TV stations. In a month's time, OSCE will start a radio station aimed exclusively at the elections and funded by the Swiss Government. However, radio stations in Serbo-Croat from abroad, e g BBC and Voice of America, have failed so far to make much impact on local opinion. OSCE have issued a code of conduct for reporters.

• Freedom of association. This is possible in some parts of the Federation but in some other areas it would be seen as provocative for nationalists of one persuasion to associate together for political purposes on the territory of nationalists of another persuasion.

• Freedom of movement. Movement across the inter-entity boundary and between the communities in the Federation is still limited but showing some signs of improvement. IFOR has removed virtually all the physical barriers. They are keeping a crude tally of the number of people passing through their check-points which shows an upward trend. UNHCR are arranging group visits across the boundary for the purpose of both tending graves and seeing property. The press announced on 17 May a local arrangement whereby, in one town, displaced Muslims would be allowed to return for a day to see their former property and would return permanently as soon as alternative accommodation was found for the Serbs temporarily accommodated there. We expect this trend to develop, especially if a more moderate regime emerges in Republika Srpska. However, conditions for the return of refugees in large numbers are still a long way off.

• The will of the people as the basis of governmental authority. This is what the elections should be about and the right is already enshrined in legislation from 1990. However, for the foreseeable future, the leading parties will continue to exercise authority from the top down.

• All seats in at least one chamber of government are freely contested in a popular vote. OSCE will prepare the framework for all seats in the House of Representatives of B&H; to be contested but whether they will be freely contested is open to question. Much will depend on other conditions such as freedom of movement, expression and association on which there are limitations as described elsewhere.

• Universal and equal suffrage to all citizens. Universal suffrage is already written into legislation from 1990 and will be guaranteed by OSCE, but equal suffrage will not exist until all citizens can return to vote freely in their own constituencies.

• The right of citizens to seek office without discrimination. Citizens unable to return to their place of origin will not be able to seek office without discrimination. Moreover, under the Dayton Accords, only a Serb can represent Republika Srpska in the Presidency of Bosnia-Herzegovina, and only a Croat and a Muslim can represent the Federation in the Presidency of Bosnia-Herzegovina. This prevents a Croat, Muslim or a member of a national minority from representing Republika Srpska in the B&H; Presidency as well as a Serb or a member of a national minority from representing the Federation in the B&H; Presidency.

• The right of individuals and groups to establish in full freedom their own political parties, with necessary legal guarantees. There are innumerable parties which have fulfilled the necessary criteria for registering. In some areas, however, local nationalists would prevent the formation of opposition parties.

• Candidates with the number of votes required by law will be duly installed in office and permitted to remain there until their terms are legally terminated. Candidates elected by absentee ballot in areas from which they have been expelled are unlikely to be able to exercise their functions for the foreseeable future.

• Attendance of observers. OSCE are planning to invite some 2,500 observers to attend.

SOME LEGAL CONSEQUENCES OF POSTPONING ELECTIONS

The following provisions in the Dayton Accords are dependent on the elections and will be affected by any postponement:

1. Annex 1-A, Article VI(3) defines IFOR's "supporting tasks", including "(a) to help create secure conditions for the conduct by others of ... free and fair elections". Should elections be postponed beyond IFOR's current mandate of December 1996, then obviously IFOR would no longer be present to help create secure conditions for elections, unless its mandate is prolonged.

2. Annex 1-A, Article VI(3) also assigns to IFOR the additional supporting task "(d) to observe and prevent interference with the movement of civilian populations, refugees, and displaced persons, and to respond appropriately to deliberate violence to life and person". This task assigned to IFOR is crucial - without freedom of movement, free and fair election are inconceivable. Again, should elections be postponed beyond IFOR's mandate, a void could be created in the mechanisms capable of preventing any interference with the freedom of movement.

3. Annex 3, Article III provides for the appointment of a Provisional Election Commission (PEC) whose members will serve until election results are finalised. Any postponement of the elections will of course extend the life of the PEC beyond its original time frame and will inevitably involve additional costs.

4. Annex 4 of the Dayton Accords, the Constitution of Bosnia & Herzegovina, Annex II stipulates that all institutions of the Republic of B&H; will continue to function until superseded by the provisions of the new Constitution. As such, the pre-DPA Constitutional Court with its current composition will continue until superseded by the new Constitutional Court as provided by Article VI of the new Constitution - 6 members selected by the legislature of the entity legislatures, and 3 by the President of the European Court of Human Rights. For reasons which are not clear, the international community and local authorities have postponed the selection of the members of the new Constitutional Court until after the nation-wide elections expected to take place in September. Consequently, any postponement of the elections will also postpone the selection of the members of the new Constitutional Court with its ethnic diversity and membership of non-nationals. Article XII of the new Constitution stipulates that the Constitution "shall enter into force upon signature" of the Accords. However, it is not clear if the current Constitutional Court considers its mandate expanded according to the new Constitution.

5. Annex 4 of the Dayton Accords, the Constitution of B&H;, Article I(7) stipulates that "there shall be a citizenship of [B&H;], to be regulated by the Parliamentary Assembly". With the postponement of the elections, the present citizenship laws will be extended beyond September, and any new citizenship laws will wait until after the elections. There are some problems with the current citizenship law which contradict the Accords and authorities may wait until the new Parliamentary Assembly is elected to amend the law.

6. Any postponement of the elections beyond the one year anniversary of the Accords should be matched with a corresponding extension of the mandates of the international institutions created by the Accords and its implementation documents - IFOR and IPTF were established for a period of one year (Security Council Res. 1031 and 1035, respectively). As for the Office of the High Representative, the Security Council Resolution (1031) establishing the office did not limit its duration. The OSCE mission likewise is not subject to the one year limitation (however the OSCE decision taken at the Ministerial Meeting in Budapest on 7-8 December 1995 establishing the mission may have a limiting clause, but ICG do not have access to that decision here).

The document issued by the High Level Working Meeting on Implementation of Annex 7 of the Accords (refugees and displaced persons provisions), held in Oslo on 8 March 1996, indirectly links the holding of elections in B&H; to the lifting of temporary protection in countries hosting refugees. As such, the postponement of elections in B&H; may be interpreted as a sign that conditions precedent to the lifting of temporary protection for Bosnian refugees are not satisfactory, and therefore a temporary protection should be extended. The document states: 16. The planned elections in [B&H;], while not a benchmark for return, are obviously of direct relevance to it, through the establishment of democratic political institutions. The fulfilment of commitments associated with free and fair elections will demonstrate progress towards democratic processes and respect for human rights."

20. The success of [UNHCR's] plan [for repatriation] ultimately depends on the following factors, many of which are beyond UNHCR's control: (a) the sustained commitment of the Parties, interested States and organisations to full implementation of all provisions of [the Accords], including provisions relating to ... elections...."