In retrospect: The first elections held under the Agreement on Elections (Annex 3 to the Dayton Peace Agreement) by the OSCE

The Agreement on Elections provided for in Annex 3 to the Dayton Peace Agreement,²⁶⁹⁴ i.e., the special regulations therein, constitutes a key element for establishing peace in Bosnia and Herzegovina. Namely, the Contracting Parties undertook to request an outside experienced actor-protagonist to conduct and to supervise the elections, whereby the right to take part in political life and to take the fate of the State into their own hands would be guaranteed to all citizens; this entails the human right which had been enshrined in a number of international conventions over the decades.²⁶⁹⁵ By Annex 3 to the Dayton Peace Agreement, the Parties (RBiH, FBiH and RS) undertook to create framework conditions for free elections by secret ballot. Certain election principles are stated in the main part of Annex 3 to the Dayton Peace Agreement. Moreover, Articles 7 and 8 of the “so called” Copenhagen Document (Document of the Second Meeting of the Conference on the Human Dimension of the Conference on Security and Cooperation in Europe, Copenhagen, 1990), which imposes a detailed set of rules relating to the preparation and conduct of elections, and the implementation of election results, are incorporated into an Attachment to Annex 3 on Elections. Article IV of Annex 3 is of particular importance. The mentioned Article stipulates that refugees and displaced persons, on the basis of the 1991 census, may vote in their pre-war places of residence. Thus, the results of ethnic cleansing would be neutralised at least in the political sense, as it was not possible or as no will existed to do so in physical sense through an urgent return of the population to their pre-war places of residence.²⁶⁹⁶

The OSCE was responsible for conducting the elections at all levels. For this purpose, the OSCE established a Provisional Election Commission. It consisted of the Head of the OSCE Mission, the High Representative or his or her designee, representatives of the Parties, and such other persons as the Head of the OSCE Mission, in consultation with the Parties, may decide. The Head of the OSCE Mission acted as Chairman of the Commission. In the event of disputes within the Commission, the decision of the Chairman was final (Article III.3). The Provisional Election Commission created a legal framework²⁶⁹⁷ for elections by adopting Electoral Rules and Regulations. It is evident that unlike the notion of “election law”, the notion of “electoral rules and regulations” was used to emphasise the difference between Annex 3 and Annex 4 to the Dayton Peace Agreement. However, the electoral rules, indeed, have an effect of an election law. The Parties undertook to comply fully with the electoral rules and regulations, “any internal laws and regulations notwithstanding”²⁶⁹⁸ (Article III.1 of Annex 3 to the Dayton Peace Agreement). During the negotiations in Dayton, there was an idea that the OSCE should be in charge of supervising and not of conducting the elections held by domestic authorities. In addition, the present Annex 3 to the Dayton Peace Agreement should have been Annex 3 to the BiH Constitution.²⁶⁹⁹ The aforementioned can clarify the fact that the notion of ‘electoral rules and regulations’ and not the notion of ‘law’ were used in quotations. The ‘law’ would imply the complete domestic regulations of the State, including the BiH Constitution, too. This difference is relevant as to the possibility of placing the bodies of Annex 3 under the jurisdiction of the Constitutional Court of BiH.²⁷⁰⁰

The interim mandate of the OSCE is highlighted in several places. The Contracting Parties should replace the provisional Election Commission by a permanent Election Commission (Article V). Pursuant to Article IV.2(a) of the BiH Constitution, members of the House of Representatives of the Parliamentary Assembly of BiH are elected in accordance with an election law to be adopted by the Parliamentary Assembly of BiH. Nevertheless, the first elections were conducted under Annex 3 to the Dayton Peace Agreement. It similarly applies to Article V.1(a) of the BiH Constitution as regards a three-member Presidency. Considering that the State failed to adopt an election law, the mandate of the OSCE was extended on several occasions. However, it is difficult to find a legal basis for extending its mandate. In addition, the time-limited mandate of the OSCE was not irrelevant in assessing the jurisdiction of the Constitutional Court of BiH to review acts adopted by the bodies of Annex 3 to the Dayton Peace Agreement. In the legal sense, statements, i.e., acts adopted at the conferences of the Peace Implementation Council, were not sufficient.²⁷⁰¹ Nonetheless, the expression of will of the Parties Signatory to Annex 3 to the Dayton Peace Agreement was considerable. However, taking into account that the original text contained a time limit for the mandate of the OSCE, there are many things to corroborate the fact that the OSCE did not extend its mandate without a legal basis, even if one agrees that such extension of the mandate may be interpreted only in the original text of the Agreement.

Only in the middle of 2001 did the domestic legislature, under strong pressure from the international community, succeed in adopting the Election Law of Bosnia and Herzegovina,²⁷⁰² whereby it fulfilled one of the basic conditions necessary for BiH’s accession to the Council of Europe. The adoption of the Election Law of Bosnia and Herzegovina was not disputable only due to the fact that the Venice Commission of the Council of Europe,²⁷⁰³ in its opinion preceding the adoption of the law, which was based on Articles IV and V of the BiH Constitution, held that the regulation of elections to the Presidency of BiH and the House of Peoples of the Parliamentary Assembly of BiH involved a prima facie infringement of international law.²⁷⁰⁴ By the entry into force of the Election Law of Bosnia and Herzegovina, responsibility for elections was transferred from the OSCE to local authorities, whereby Annex 3 to the Dayton Peace Agreement was completed, i.e., exhausted. The Election Law, in addition to the Election Commission and Election Complaints and Appeals Council, anticipates judicial protection before the Appellate Division of the Court of Bosnia and Herzegovina (Chapter 6 of the Election Law of Bosnia and Herzegovina).

Under the aegis of the OSCE,²⁷⁰⁵ general elections were held in 1996, 1998, 2000²⁷⁰⁶ and 2002, with special elections for the RS National Assembly in 1997, as well as municipal elections in 1997 and 2000.²⁷⁰⁷ Many problems appeared in the first years as to the technical aspect of the election process, such as a lack of data from registers of births. A number of votes of citizens living abroad were not confirmed and some political parties, i.e., their candidates, were not permitted to stand as candidates for elections.²⁷⁰⁸ Thus, the 1996 elections were characterised by many irregularities and incidents so that even the Head of the OSCE Mission to BiH reported that the elections could be regarded “as partially democratic” and achieving “a partially democratic result”, but not characterised as “free and fair”. Some observers expressed their suspicion as to whether the elections achieved the aim sought, namely democratisation.²⁷⁰⁹ Even when the technical aspect of the election process was improved, the international community could not hide its disappointment in the results. According to the opinion of a number of observers, the first elections – those conducted in September 1996 – were held too soon after the armed conflict. In addition, many observers were of the opinion that expectations that the elections could have a stabilising effect were unrealistic, even when the 2000 elections are referred to.²⁷¹⁰ Elections were also held before the armed conflict, which were used as democratic grounds for the conflicting parties to conduct their respective nationalist policies. The central position of power was still held by ‘old staff’ which were partially under the control of wanted war criminals.²⁷¹¹ In addition, the media was in the hands of nationalist-oriented political parties.²⁷¹²

A decision on the existence of the necessary framework conditions called for by Article I Annex 3 to the Dayton Peace Agreement rested in the discretion of the OSCE. In Article II.4 of Annex 3 to the Dayton Peace Agreement, the OSCE was given a six-month time limit after the entry into force of the Agreement to organise and hold elections. To avoid a boycott of the election by a large part of population, i.e., to avoid jeopardising the rather fragile peace in the country, the OSCE bowed to pressure of the relevant Western governments and recognised a number of political parties that were disloyal in constitutional terms²⁷¹³ and turned a blind eye to some offensive violations of human rights and freedoms which had a bearing on the implementation of fair and free elections.²⁷¹⁴ The practice proved that the people were so traumatized after the armed conflict that, in the first elections, they attached considerable importance to their personal safety, i.e., to a collective safety of their own people. As a guarantee of safety immediately after the armed conflict, voters, paradoxical as it may seem, put their trust in nationalist-oriented parties, which had led them into the armed conflict in the first place. It was evident that, even five years after the armed conflict, economic issues were not essential.²⁷¹⁵ A debate relating to an electoral system was not disregarded. Thus, for instance, it was proposed that political life, although not in its entirety, should be relieved of ethnification, so that it could be partially de-radicalised by separating political parties in three ethnically defined groups and allowing each voter, in addition to his/her vote for “his/her” ethnic group, to also cast a vote for one of the parties representing other ethnic groups.²⁷¹⁶

The OSCE was indecisive in attempting to blunt the sharp ethnic edges of the electoral system, which led towards a major constitutional crisis after the armed conflict in BiH when the leading Croatian elites in FBiH decided to establish parallel government institutions as they considered that their interests were seriously jeopardised by amendments to the Election Law of Bosnia and Herzegovina.²⁷¹⁷

The undesirable result of the first elections was, according to some views, “a legitimisation of [the] de facto violence monopoly” of the ethnocratic parties, as well as a consolidation of ethnic cleansing through the elections.²⁷¹⁸ In order to prevent or to mitigate this sequence of events during the next elections, the international community banned some political parties and/or candidates and compelled political parties to announce their programs and to reveal their financial sources and partially supported the “so called” more moderate parties.²⁷¹⁹ Election results confirmed that the de-ethnification of political life in BiH achieved little success and the international community tried to balance it by releasing enormous funds to support or to help political parties with multi- ethnic programs, appropriate coalitions or governments.²⁷²⁰ Thus, for instance, the Serb Democratic Party (SDS)²⁷²¹ – which was founded by Radovan Karadžić – could establish a government in the RS only by guaranteeing to the OHR that non-party representatives would be in the government, despite the fact that it had a relative majority. Likewise, only seven years after the armed conflict and with intensified diplomatic efforts by the international community could the “Alliance for Changes”, composed of social-democratic parties and non-nationalist satellite parties, become ruling parties at the State level and at the level of FBiH. In this way, for the first time, the parties of the blocks, in addition to the Serb Democratic Party, the Party of Democratic Action (SDA) and the Croatian Democratic Union (HDZ), became the opposition parties.²⁷²² For the first time after 1996, part of the votes for the HDZ, SDA and SDS went to the Social Democratic Party (SDP) and (in the RS) to the Party of Democratic Progress, founded by Mladen Ivanić. However, the nationalist trio maintained considerable influence. After the 2000 elections, in the elections to the RS National Assembly, the SDS, as the strongest party, took 36.1% votes. The SDS, which was almost banned from taking part in political life because of its affinity to protect war criminals and, especially, because it protected Radovan Karadžić, was a winner that took advantage of the radical right party ban, the Serb Radical Party, the voters of which cast their votes to SDS.²⁷²³ After the election debacle in 2002, from the point of view of the international community, with the lowest voter turnout (55.5%) ever, the three nationalist blocks of parties regained power at all levels. Thus, the international community felt compelled to negotiate a reform programme, which was inevitable, not against but with those parties.²⁷²⁴ Raising nationalist rhetoric and radical positions concerning the status of BiH as well as the status of the RS marked the 2006 election campaign.²⁷²⁵ However, representatives of the international community strongly appealed to all citizens to take part in the elections.²⁷²⁶ The elections were held in a democratic atmosphere, without incident and, for the first time, without international community assistance.²⁷²⁷ However, a low voter turnout of 55.31%, similar to the election turnout in the former elections, reflected voter apathy and, in a way, a feeling of helplessness within the voting public. This particularly applies to the FBiH, where voter turnout was only 50.59%.²⁷²⁸ The election results were excellent, primarily for the Party of Independent Social Democrats (SNSD), led by Milorad Dodik, which gained 43.31% of the votes and won a majority (41 out of 82 seats) in the RS National Assembly. In the FBiH, the SDA remained the strongest party (25.54%); nevertheless, compared to the previous elections, the SDA lost not only a number of voters who voted for the Party for Bosnia and Herzegovina (SBiH) (22.16%), led by Haris Silajdžić, but was also defeated, as the SDA candidate did not become the Bosniak member to the Presidency of BiH. This was put down to the moderate policy of Sulejman Tihić, President of the SDA. The SDP also lost a number of votes, so that it gained only 15.17% of the votes for the House of Representatives of the FBiH Parliament. These results were similarly reflected in the results at the State level. After the elections, the international community had no choice but to appeal to newly elected officials to take up responsibility for the fate of BiH.²⁷²⁹ Regrettably, the European Commission’s Progress Report on Bosnia and Herzegovina for 2009,²⁷³⁰ which is the last year of the ruling parties’ governance taking into account that new general elections will be held in 2010, shows that the State has made “little progress”.