Introduction
Municipal elections in Kosovo will take place on October 28, 2000. As in Bosnia and Hercegovina, Kosovo's first post-conflict elections will have a profound impact in shaping the democratic development of the province, with ramifications for the rule of law, human rights, and the overall security situation. The experience of Bosnia demonstrates that unless elections are conducted in conformity with the highest international standards, the results will serve only to undermine international efforts to build a lasting peace in Kosovo. Yet to date, preparations for the elections appear to have been driven more by the desire to meet a pre-determined deadline set for the poll, than the need to create the minimum conditions necessary for free and fair elections, established by the OSCE Document of the Copenhagen Meeting on the Human Dimension.
This paper outlines the legal framework for the elections, examines the experience of Bosnia and Hercegovina, critically assesses the security situation, the role of the media and plans for enforcing election standards, and notes concerns related to election monitoring and the implementation of results. Finally, it sets out recommendations to the OSCE and the Council of Europe for the conduct, monitoring and certification of the elections.
The International Standards
United Nations Security Council resolution 1244 clearly envisages self-government through an electoral process prior to a political settlement on the status of Kosovo. Paragraph 11, section C states: "The main responsibilities of the international civil presence will include overseeing the development of provisional institutions for democratic and autonomous self-government pending a political settlement, including the holding of elections."
The conditions necessary for the holding of free and fair elections are laid down in the draft Interim Agreement for Peace and Self-Government in Kosovo (generally referred to as the "Rambouillet Agreement"), which was drafted by the inter-governmental Contact Group on Kosovo and agreed upon by the Kosovo Albanian delegation to the Rambouillet talks. According to Chapter 3, Article 1, section 1 of the agreement, the necessary conditions include:
a) freedom of movement for all citizens;
b) an open and free political environment;
c) an environment conducive to the return of displaced persons;
d) a safe and secure environment that ensures freedom of assembly, association, and expression;
e) an electoral legal framework of rules and regulations complying with OSCE commitments, which will be implemented by a Central Election Commission, as set forth in Article III, which is representative of the population of Kosovo in terms of national communities and political parties; and f) free media, effectively accessible to registered political parties and candidates, and available to voters throughout Kosovo.
Section 3 of the same article also obliges the parties to the agreement to "comply fully with Paragraphs 7 and 8 of the OSCE Copenhagen Document [on the Human Dimension]."
The 1990 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (later OSCE) enumerates the OSCE's standards on the conduct of free and fair elections.(1) Key provisions are contained in paragraph 7, especially the obligation to:
(7.3) - guarantee universal and equal suffrage to adult citizens;
(7.7) - ensure that law and public policy work to permit political campaigning to be conducted in a fair and free atmosphere in which neither administrative action, violence nor intimidation bars the parties and the candidates from freely presenting their views and qualifications, or prevents the voters from learning and discussing them or from casting their vote free of fear of retribution;
(7.8) - provide that no legal or administrative obstacle stands in the way of unimpeded access to the media on a non-discriminatory basis for all political groupings and individuals wishing to participate in the electoral process;
(7.9) - ensure that the candidates who obtain the necessary number of votes required by the law are duly installed in office and are permitted to remain in office until their term expires or is otherwise brought to end in a manner that is regulated by law in conformity with democratic parliamentary and constitutional procedures;
Ambassador Daan Everts, the Head of Mission of the OSCE Mission to Kosovo has stated that the forthcoming elections "must be credible." Human Rights Watch believes that unless the elections are conducted according to the OSCE's own standards set out in the Copenhagen document, they will be neither credible nor consonant with the provision of U.N. resolution 1244 that charges the international civilian presence with the development of democratic provisional institutions through the holding of elections.
The Experience of Bosnia and Hercegovina
The international community's experience in organizing and conducting elections in Bosnia and Hercegovina is relevant in assessing preparations for municipal elections in Kosovo. Although it is important not to overstate the similarities, in both situations the international community was directly charged with staging elections in territories that have little or no prior experience of direct electoral democracy. In Kosovo, as in the case of Bosnia and Hercegovina, the elections are taking place soon after the termination of a bitter conflict characterized by large-scale violations of human rights, including mass deportation and executions. In both, the parties to the conflict have yet to resolve their differences, and human rights abuses continue.
Many Western diplomats, including NATO officials and representatives from international organizations in Bosnia and Hercegovina, have acknowledged to Human Rights Watch that one of the international community's biggest errors in Bosnia was to hold elections prematurely. In the absence of conditions for free and fair elections, notably freedom of expression, movement and assembly, and with continued attacks on minority populations, the 1996 national and entity-level elections in Bosnia and Hercegovina served only to legitimize further the nationalist political parties and their leaders. It is worth recalling the warning issued by then-OSCE Chairman-in-Office (and Swiss Foreign Minister) Flavio Cotti in his June 1996 statement at the OSCE Permanent Council on pre-certification of the September 1996 Bosnian elections. Mr. Cotti noted that at the time of his statement, conditions did not exist for free and fair elections, and warned that unless significant progress was made toward creating those conditions prior to the elections, the result would be a "pseudo-democratic legitimization of extreme nationalist power structures." The more recent actions by the international community's High Representative in Bosnia and Hercegovina to dismiss elected officials opposed to the implementation of the Dayton-Paris peace agreement indicate the accuracy of Mr. Cotti's prediction.
The international community's experience with the implementation of the results of the 1997 municipal elections in Bosnia and Hercegovina is also relevant. Efforts to permit displaced persons to vote for representatives in their former municipalities resulted in minority representation in a significant number of municipalities. The implementation of those results proved far more difficult than the arrangements for voting, as incumbent officials and local authorities erected obstacles to prevent representatives elected by former residents from taking up their seats on municipal councils. Representatives elected by former residents were also frequently subjected to violence and intimidation when they attempted to travel to their municipal offices to take up their duties as elected officials.
The Pre-Election Climate in Kosovo
More than a year after the end of the war in Kosovo, the security situation in the province remains a cause for serious concern. Attacks on minorities, including murder, continue. The weeks surrounding the first anniversary of the entry of the NATO-led Kosovo Force (KFOR) into Kosovo in June saw an upsurge in violence against minorities in the province. A series of grenade and land-mine attacks and drive-by shootings targeting Serbs left eleven dead and more than a dozen wounded. Violence continued during the summer: On July 12, a Serbian Orthodox priest and two seminary students were wounded in a drive-by shooting near the village of Klokot. A grenade was thrown from a moving car into a group of children at a basketball court in the Serb village of Crkvena Vodica on August 18, leaving ten wounded. On August 27, an Albanian man drove his car into a group of children in the same village before fleeing the scene, killing one child and wounding three. An eighty-year-old Serb farmer from the same village was shot dead later the same day. On September 14, a forty-five-year-old Serb woman was shot dead at her home in Kamenica. A sixty-year-old Serb shepherd who had been reported missing was discovered dead near Strpce on October 4, with gun-shot wounds to the body. With most minorities displaced outside Kosovo or living in minority enclaves under permanent KFOR guard, the decision by Serbs to boycott registration should have come as little surprise, even without the alleged manipulation by then-Yugoslav president Milosevic. In the case of Kosovo's minorities, therefore, it is hard to argue that the minimum conditions exist for the holding of free and fair elections.
Kosovo's Albanian majority, more than a million of whom have registered to vote in the elections, have also been plagued by post-war violence. The murder of a politician from the Democratic League of Kosovo, the party headed by Ibrahim Rugova and known by its Albanian acronym, LDK, and the kidnaping and interrogation of another in the Drenica region in November 1999 have been followed by a spate of execution-style killings of prominent ex-members of the Kosovo Liberation Army (KLA), the most recent on September 20. Although the killings are frequently attributed to rivalries among organized crime figures, some of the murders, including May's killing in Prizren of the political moderate and prominent former-KLA leader Ekrem Rexha (known as Commander "Drini"), have a clear political dimension.
Political violence has increased over the summer. On June 15 Alil Dresaj, a senior LDK politician, was shot dead by persons wearing insignia of the former KLA. On July 7, Ramush Haradinaj, a leading politician and former senior KLA official, was wounded in the village of Streoce during what appears to have been a shootout. On July 12, a close aide to Haradinaj was murdered. The burned corpse of Shaban Manaj, a senior LDK official, was discovered on August 6 in a remote village. He had been kidnaped on July 27. Attacks directed against the LDK continued in August. On August 1, an LDK activist was shot and wounded in Podujevo. The head of the LDK in Srbica was wounded in a shooting the following day. The wife of an LDK official died in an explosion at their home in Dragash on August 9. Several LDK offices were attacked during the same month.
On August 18, a bomb exploded at an OSCE building in central Pristina. The building was used to house several smaller political parties, including Bosniak and Turkish parties contesting the election, and the representative office of the Yugoslav government. Many observers suspect political motives in the September murders of Shefki Popova and Rexhep Luci, two prominent Albanians with close ties to the LDK: Popova, a veteran journalist (see media section, below) and Luci, head of Kosovo's housing and reconstruction department, were gunned down on consecutive days. On October 6, a municipal elections candidate from the Democratic Party of Kosovo (PDK, the party headed by former KLA leader Hashim Thaci), was arrested in connection with a triple-bomb attack in Prizren three days earlier.
In addition to the risk of further violence, there is a real danger of intimidation. Efforts to establish a local judiciary in Kosovo have been hampered by frequent reports of the intimidation of local judges, especially on "sensitive" cases involving minority defendants or prominent political figures. Some international officials now acknowledge that the nascent judiciary in the province demands the same degree of international supervision as the Kosovo Police Service. Election officials, party representatives and voters are likely to be subjected to similar pressures during the election campaign and particularly during the voting and counting of results. Without a marked improvement in security and a high degree of international supervision and protection, it is unlikely that elections will be conducted in an atmosphere free from "violence...intimidation [or] fear of retribution," in accordance with paragraph 7, section (7) of the Copenhagen document.
The Role of the Media
Freedom of expression and access to the media under paragraph 7, section (8) of the Copenhagen document are key elements of the conduct of free and fair elections. Yet there are serious constraints to freedom of expression in Kosovo at present, notably in the form of attacks on journalists. On September 10, Shefki Popova, a senior correspondent with the Albanian-language daily Rilindija, died in the town of Vucitrn after being shot and repeatedly stabbed by two unidentified men. Rilindija is widely seen as close to the LDK. The killing followed the disappearance a day earlier of Marjan Melonasi, a journalist from a ethnically-mixed family who worked with the Serbian-language service of Kosovo Radio-Television. On June 20, Valentina Cukic, the editor of a Serbian-language program of the multi-ethnic Radio Kontakt, was shot and badly wounded. Last year, the publisher and editor of Koha Ditore were verbally attacked and threatened after publishing an editorial condemning attacks on minorities.
In addition to the intimidation of journalists, biased coverage of the elections is also a concern. Although the internationally-funded electronic media are balanced in their coverage, many Albanian language daily newspapers and some private radio stations are extremely partisan in their reporting on politics in Kosovo.
The international community is clearly well aware of the dangers to the free and fair elections posed by inflammatory reporting and intimidation of journalists. A variety of measures have been introduced, including an UNMIK regulation forbidding hate speech, a code of conduct and training for journalists, European Union-funded media monitoring by the OSCE Mission in Kosovo, the explicit prohibition in the election code of conduct on the use by political parties of language that "incites hatred," and the decision to include media monitoring in the mandate of the Council of Europe Election Observation Mission. Nevertheless, the OSCE Mission in Kosovo and the Central Election Commission must guard against the possibility that the inflammatory rhetoric used by radio stations and mainstream newspapers will be used to incite violence during the election period, and the conduct of the media during the election should be fully incorporated into the final assessment of the Council of Europe Election Observation Mission.
Enforcement of Election Standards
As in Bosnia and Hercegovina, the enforcement of the international standards in the organization and conduct of the elections in Kosovo presents a major challenge to the international community. In particular there are concerns that the bodies set up to enforce electoral standards will be subject to international and local pressure to ignore serious violations or to use only perfunctory sanctions to punish them.
The main yardstick for the conduct of the parties during the election, aside from the international standards discussed above, is the Code of Conduct for the elections, which spells out the obligations of the parties. Two bodies are responsible for enforcement of the code and international election standards.(2) The Central Election Commission (CEC) has overarching responsibility for all aspects of the elections, including compliance with the Code. The CEC is chaired by the OSCE Mission Chief, Ambassador Daan Everts, assisted by two international and nine local deputies. Decisions are made by consensus, although the Chair has the right to decided unilaterally if consensus cannot be reached.
The Election Claims and Appeals Sub-Commission (ECAC) has specific responsibility for ensuring compliance with the electoral code. According to Electoral Rule number 2000/2, the ECAC is responsible for "adjudicating all complaints concerning the electoral process."(3) The ECAC consists of an international commissioner, Dieter Schoene and two local deputies. It has the right to hear complaints and appeals from any party or individual, as well as international agencies. As with the Central Commission, the decisions of the ECAC are made by consensus with the Chief Commissioner having the right to decide unilaterally in the event of deadlock. It has the power to order corrective action to be taken and to impose fines of up to 10,000 Deutsche Marks (approximately U.S.$4450). More serious penalties such as removing a candidate from a party list or banning a party from contesting the elections can be made only with the approval of the Central Election Commission. Decisions by the ECAC are final and cannot be appealed.
The experience of Bosnia and Hercegovina indicates that both bodies are likely to be faced with potentially explosive decisions, such as whether to impose sanctions on leading parties that may result in a reduction in the number of candidates they are permitted to field or even ban them from contesting some municipalities. Local officials on the Central Election Commission and Election Complaints and Appeals Sub-Commission are likely to be subject to pressures similar to those faced by judges and prosecutors in Kosovo, increasing the risk of deadlock among their members.
Kosovo's political parties are unlikely to be the only source of pressure on the Central Election Commission and the Complaints and Appeals Sub-Commission. During preparations for national, entity-level and municipal elections in Bosnia and Hercegovina in 1996, the Bosnian Provisional Election Commission (PEC) came under significant pressure from some OSCE member governments to hold the national and entity-level elections despite the absence of the conditions set out by then-OSCE Chairman-in-Office Flavio Cotti, as well as pressure to go ahead with simultaneous municipal elections, despite clear indications from OSCE field offices that the necessary conditions did not exist. While the municipal elections were eventually postponed, the decision to go ahead with the vote at the national and entity level resulted in flawed elections in which existing nationalist parties in each of the communities were able to further consolidate power.
An equally troubling precedent can be found in the interference in the work of the OSCE's Electoral Appeals Sub-Commission (EASC) during the 1997 municipal elections in Bosnia. The Bosnian Provisional Election Commission initially made a correct decision to constitute the Bosnian Election Appeals Sub-Commission as an independent judicial panel to assess possible violations of the election law and apply sanctions where necessary. During the 1997 elections, however, the Head of Bosnian Election Commission (and OSCE Mission Chief) Ambassador Robert Frowick overturned several key rulings by the Bosnian EASC where it had struck candidates from a party's list for flagrant violations of the election rules. This interference in the work of the Bosnian election appeals body undermined the integrity of the elections and led several of its members to resign in protest.
Given the OSCE's experience with the EASC in Bosnia, the decision to constitute an appeals subcommission in Kosovo with limited independent powers of sanction suggests a conscious decision to create an emasculated subcommission. To date the Kosovo ECAC has functioned effectively, issuing a handful of rulings against parties for violations of the election code. In all but one case, it has imposed corrective action or relatively small fines. On October 3, however, the ECAC struck a candidate from the PDK party list in Lipljan, after the violent disruption of an LDK election rally in the town. The decision to strike the candidate was an encouraging sign that the ECAC is willing to use more serious sanctions in order to ensure compliance with the election rules. Nevertheless, the experience of Bosnia indicates that if serious irregularities occur that threaten the integrity of the elections in Kosovo, the Kosovo Complaints and Appeals Sub-Commission is likely to come under considerable pressure to refrain from recommending that the offending candidates or parties be prevented from running in the elections.
Election Monitoring
Effective and impartial monitoring of the campaign, events on voting day, and the counting and tabulation of results are crucial to the integrity of any election process. The decision to invite the Council of Europe to coordinate election monitoring rather than depending on the organization responsible for the conduct of the elections, namely the OSCE, is therefore both a welcome development and a significant departure from previous polls organized by the international community in the region. That innovation aside, the Council of Europe Election Observation Mission follows a traditional pattern, with the deployment of a small team of long-term observers to monitor preparations for the elections, including the already completed registration process, the conduct of the campaign and the functioning of the Central Election Commission. Several days prior to the vote, 150 short-term observers coordinated by the Mission will be deployed for an eight-day period to observe the voting process throughout the province. The Mission has complained of delay in the deployment of long-term observers: the first report indicated that as of August 8, slightly less than two-thirds of the nineteen long-term observed were present in Kosovo.(4) Although the Mission's first report is largely confined to an assessment of the registration process, early indications suggest that the Mission values its independence and intends to accurately reflect the "conformity of the election process with international standards."(5) If the experience of Bosnia is indicative, the Mission's commitment to those values may be severely tested if serious irregularities occur. In such a situation, there is likely to be considerable pressure from some western governments to overlook the problems and to certify the elections regardless.
The Implementation of Results
As noted above, implementing election results was one of the major challenges arising from the internationally-organized municipal elections in Bosnia. The difficulties in Bosnia were related to installing local officials representing one ethnic group in areas now dominated by another. In Kosovo, there is a majority Albanian population and Serbs in the province are boycotting the election. This does not mean, however, that issues over implementation will not arise. It is important to recall that de facto local authorities were established throughout Kosovo following the end of the war in June 1999. In many cases, those authorities were dominated by, or had strong links to, the Kosovo Liberation Army. Current polls show Ibrahim Rugova's LDK enjoying a lead over its main rival, the PDK, which is headed by former KLA leader Hashim Thaci and has strong ties to the former KLA throughout Kosovo. In the event of widespread victories for the LDK, many of the current de facto municipal authorities dominated by the KLA will be called upon to hand over power to their rivals. Under those circumstances, difficulties over implementation may arise.
Recommendations:
To the Organization for Security and Cooperation in Europe and its member states
Pre-Election Certification
- No later that 48 hours prior to the vote, the OSCE Chairperson-in-Office should certify whether conditions necessary for the conduct of free and fair municipal elections in Kosovo exist. Those conditions should be based on paragraphs 7 and 8 of the Copenhagen document. The decision to certify should give due consideration to the recommendation of the Council of Europe Election Monitoring Mission (see below). If conditions do not exist, the elections should be postponed.
Enforcing Electoral Standards
- The powers of the Election Complaints and Appeals Sub-Commission should be enhanced. In particular, the subcommission should have recourse to effective sanctions in the most serious cases of electoral misconduct. Its rulings should not be subject to approval or veto by the Central Election Commission or its Chairman.
- Violations of the Code of Conduct that also constitute violations of the criminal or civil code should also be investigated by United Nations Civilian Police.
To the Council of Europe and its member states:
Pre-Election Monitoring
- Member states must ensure that the Council of Europe monitoring mission in Kosovo has adequate staff and resources to carry out its tasks throughout the electoral process.
Pre-Election Certification
- Prior to any decision by the OSCE Chairperson-in-Office regarding pre-election certification, the Council of Europe monitoring mission should prepare a public report detailing the work of the mission in monitoring the registration period and the assessing the conditions for elections. It should include a recommendation regarding pre-election certification. The report should be submitted to the Council of Europe Committee of Ministers, to the Head of UNMIK, to the Chairman of the Central Election Commission and to the Secretary-General of the Council of Europe.
Post-Election Certification
- Final certification of elections should be issued by the head of the Council of Europe Election Observation Mission not by the head of the Central Election Commission or OSCE Chairperson-in-Office. The certification should measure actual performance against the criteria laid down in international election standards including the Copenhagen Document, the International Covenant on Civil and Political Rights and article 3 of Protocol 1 of the European Convention on Human Rights.
- Member states must ensure that the independence of the Election Observation Mission is respected, particularly in the event of serious irregularities in the vote.
1. The universal right to participate in democratic elections is established by article 25 of the International Covenant on Civil and Political Rights and article 21 of the Universal Declaration of Human Rights.
2. There are also local election commissions in each municipality.
3. OSCE Mission in Kosovo, Central Election Commission: Electoral Rule No. 2000/2. Election Complaints and Appeals Sub-Commission. May 3, 2000.
4. Council of Europe Election Observation Mission: First Report (August 18, 2000).
5. Quoted from: "Media Briefing: Council of Europe Election Observation Mission in Kosovo."
