28 May 1996
On the basis of information available to ICG, it would appear as if an opportunity has been lost in Mostar to correct an anomalous situation with regard to holding city elections there. Indeed, in our view, the compromise that has been reached is neither satisfactory nor defensible in terms of the Dayton Peace Accords (DPA). We believe that the Mostar elections should have been postponed until the general elections.
There is a clear legal case for arguing for the Mostar elections to be held at the same time as the wider elections on the basis that it was the express intention to bring the Federation Agreement in conformity with the Dayton Accords. The stipulation in the former that elections should be held by 31 May could be disregarded by making it conform with the stipulation in the latter that general elections should be held by 14 September. This being so, no further agreement with the signatories would be necessary. The EU Administrator would have been free to make such a decision in accordance with international law without going into discussions with the two main political parties involved. In so far as a public announcement of the change was necessitated by the posturing of the parties, the EU Administrator could have said that the conditions for elections as prescribed in the DPA had not been met and that a delay until the date for wider elections would bring the Federation Agreement in conformity with the DPA and would allow time for improvements in freedom of movement, expression and association to be made.
The announcement of a postponement of elections to the second half of June is impossible to justify in terms of bringing the Federation Agreement in conformity with DPA and could indeed be regarded as an amendment to the Federation Agreement, necessitating a formal negotiation and agreement between the signatories. A delay of one month is in any case insufficient for bringing about the improvements in conditions for free and fair elections, not least of concern is the present difficulty of freedom of movement between the two parts of the city. Muslim voters will hardly be encouraged to vote in West Mostar by the present level of animosity, if not violence, shown towards them, no matter what arrangements are made for bussing them back from their temporary places of refuge.
A postponement to June would also appear unsatisfactory on technical grounds as the registration of voters will now be conducted, we understand, by the same people and at the same time as the OSCE will be registering voters for the general elections. This is bound to stretch the limited resources available. Moreover, as the definition of who may vote is different in either case, the two lists will not be directly compatible.
The main objection of the Bosniak SDA party to holding the elections in May was one of principle in that the Federation Agreement and the subsequent Election Decree did not allow an absentee ballot. They wanted nothing to be done which would recognise ethnic cleansing. This objection would also have been met by bringing the Federation Agreement into conformity with the DPA, which does, of course, provide for an absentee vote. Indeed, ICG would argue that this should have been done anyway for equity's sake. Instead, a different definition of who may vote has been made which is not defensible in terms of either the Federation or Dayton Agreements and establishes a precedent for amending the election rules under threat of a boycott which could be dangerous for the general elections.
As far as ICG can see, the postponement to June seems to have been made for two reasons: first to ensure they are held before the end of the EU Administration's mandate on 22 July; and, secondly, to meet the objection of the Croat HDZ party that the elections should be held before the general elections. ICG are not privy to the considerations of the EU, but a case for an extension of the mandate to, say, mid-October could surely have been made. The arguments are, in our view, overwhelmingly in favour of a postponement of the elections to September and the extra cost to the EU compared with its investment in peace in Mostar so far would seem relatively insignificant.
The HDZ objection is difficult, though it would not have been if a postponement to September had been decided earlier. The HDZ, because of population changes in Mostar, would have had an advantage under the Federation Agreement rules and would clearly fight to maintain that position. However, ICG understand that the Croats were more concerned about ensuring Bosniak (Muslim) participation in the elections and in their being held during the EU's mandate. Bringing the Mostar elections in line with the general elections and a short extension of the EU mandate could have won them over.
ICG realise that the EU Administrator has announced the postponement to the second half of June. Although it would be difficult for him and the EU to announce a further change, it is surely more important for democracy and the future of Mostar that these elections should be held in the best possible circumstances. A postponement to June will not do that, but a postponement to September might.