The situation with respect to thuwar involvement in arbitrary arrest and enforced disappearance changed considerably since the Commission’s first report. Where little information was received in the first phase, during the latter phase well over 100 individual cases of arbitrary arrest by thuwar were documented. There are several thousand detainees still being held in relation to the conflict.414
Arrests by the thuwar began taking place in significant numbers as soon as they began taking control of areas. For example, when Tripoli fell to the thuwar hundreds of former soldiers, police officers, members of the security apparatus, suspected mercenaries and perceived Qadhafi loyalists were systematically arrested, as were members of the political establishment who had not managed by then to escape. Thuwar in some cases appeared to be operating from lists of names they collected upon seizing a military base, a police station or government institution. The arrests continued well into December 2011,415 and January 2012,416 despite a public call by the Ministry of Interior to halt them.
The Commission is concerned that the thuwar applied a presumption of guilt to those who fought against them or who they believed supported the Qadhafi Government, irrespective of whether their behaviour during the conflict violated either domestic or international law. According to one interviewee in the Misrata Security Committee, his officers have “a mandate to arrest all the members of the Qadhafi Government who participated actively in the fighting against the people of Misrata and...detain them in Misrata detention facilities”.417
The patterns associated with these arrests were consistent. A group of armed men, usually with machine guns mounted on pick-up trucks, would appear at suspect’s home. Generally they would search the house for the wanted person and pillage items of value (see chap. III, sect L). Attempts to oppose them were dealt with harshly. All adult males were normally arrested. Sometimes, the arrestees were released a short time later if there was no evidence that they had actively opposed the thuwar, although in some instances their passports were kept.418 Most often the detainees were held, sometimes for an extended period that was accompanied by maltreatment.
The Commission found evidence that some detainees were informed of the reason for their arrest, albeit after some delay. Some interviewees were told that a warrant existed for their arrest, however, they were not allowed to see it. Others were told that the local council had signed off on their arrest.419 Others appear to have learned of the accusation against them based on the questions during interrogations. They were neither provided access to counsel, nor informed of their right to have one.420 Arrestees did not appear to have the ability to challenge the lawfulness of their detention. These detainees have been held in circumstances that violate their fundamental human rights, rendering their continued detention arbitrary per se.
The Commission is aware that in Benghazi, a trial has begun against 41 Qadhafi-era security forces. They appear to have access to counsel, however it is unclear whether other facets of international human rights law are being afforded, such as sufficient time to prepare the defence and the exclusion of statements obtained through torture.
People are being held in official and unofficial detention centres. In addition, the Commission is aware that a number of thuwarbrigades are operating “unacknowledged” detention centres beyond the reach of any internal or external monitoring – indeed beyond any legal framework. At least one detainee told the Commission they were moved just prior to the arrival of the ICRC so that they would not be recorded, although the Commission was unable to verify this claim (see chap. III, sect. D).421
Tripoli The Commission met the family of a former Qadhafi policeman.422 The Commission learned that while visiting his parents’ home outside of Tripoli in October, 2011, the former policeman and several members of his family saw approximately 90 armed men in 30 cars, mostly pick-ups and Land Cruisers, arrive at the house early in the morning. The men reportedly did not present an arrest or search warrant. They stayed at the house for about two hours and the interviewee told the Commissioner they stole some 22,000 dinars, televisions, telephones and gold jewellery. The men arrested the former policeman and several other males at the house. They were maltreated upon arrest, including being beaten with wooden clubs. The interviewee was kept for a few days, seriously maltreated, then released.423
The Commission recorded 12 cases of a similar nature in Tripoli alone – not including the Tawergha cases which are treated separately in this report (see chap. III, sect. E) – although the level of maltreatment subsequent to arrest varied.424
In a practice reminiscent of the Qadhafi Government, those undertaking arrests appear content to arrest a different family member if the individual they are in fact seeking is not at home. For example, the Commission interviewed a man who stated how, in late November 2011, a group of thuwar from Misrata (Katiba Al-Shahid Khaled Qarkas) came to his house in Tripoli in the early afternoon.425 They came in about five to six cars with had anti-aircraft weapons mounted on them, with the men inside carrying Kalashnikovs. The man was home with his wife and two children at the time. The thuwar said they were looking for the man’s brother in law who had served in Qadhafi’s administration, although they presented no arrest warrant. The man said they took three cars from the family home as well as several thousand dinars, and other valuables. When two of the man’s brothers arrived to help, all three were arrested, blindfolded, put in cars, and questioned about the location of the brother-in-law. Having been blindfolded, the homeowner was not able to tell the Commission precisely where he was taken. All the men were released the following day and were reportedly not maltreated, although most of the stolen items were not returned.
The Commission also took note of the practice of re-arrest, which added emphasis to the arbitrary nature of the detention. A number of individuals detained by one brigade and then released were then re-arrested by another.426 Others were re-arrested by a different faction within the same brigade.427 Tawerghans, other black Libyans, and sub-Saharan Africans were particularly susceptible to this practice and their cases comprise the bulk of those registered by the Commission.428
Groups of armed men invading a home was not the only way that those perceived to be Qadhafi loyalists were apprehended. A Qadhafi government practice documented in the Commission’s first report was later adopted by the thuwar,429 This was the arrest of people from hospital and checkpoints.430 Other persons from the former government decided to turn themselves in.431 Another reported having been tricked into appearing at a brigade headquarters by one of his neighbours.432 Yet another individual, a Tawerghan, told the Commission how he had hired a taxi and, while en route to his destination, the driver asked to make a small detour. The driver then stopped alongside a Mitsubishi pick-up truck with ‘Misrata’ and ‘17 February Brigade’ written on the side. The driver told the soldiers there that there was a Tawerghan in the back seat. The man was arrested on the spot and subsequently maltreated.433
The Commission is aware that over time, the number of conflict-related arrestees still being held is declining. Some have been released after investigations, but several interviewees reported being able to buy their way out.434 Others appear to have been released through connections.435 All this adds to the perception of arbitrariness in the original arrest.
The Commission has described in detail elsewhere in this report the systematic arbitrary arrests and disappearances of Tawerghan males by Misrata thuwar (see chap. III, sect. E).436 One case will suffice here by way of example. In January 2012, the Commission met with a family who had several of their members arrested.437 On 27 October 2011, a brigade from Misrata (katibat al-istiqlal) detained all of the families, including women and children, in the former Social Security Building there. They were kept there for six days. Everyone was eventually released, except nine males some of who had served in the Qadhafi military. Two of those nine reportedly died under torture inflicted by their captors.
Thuwar brigades from Misrata have also detained large numbers of Qadhafi security forces and supporters who are not of Tawerghan descent. The Commission met with one 17-year-old detainee who was arrested by thuwar apparently under the suspicion of being either a mercenary or a sniper.438 He said he was tortured and then, when no evidence of his involvement was found, released near the Tunisian border. He told the Commission how he walked to the border and was then re-arrested, this time by the border guards who sent him to Tripoli. He stated that under two months of torture there he finally confessed that he was a sniper and that he had killed two thuwar in Sirte. He was then sent to Misrata. The Commission observed many indications of torture on the young man’s body. It was clear that this individual did not understand the reasons for his detention, nor indeed the consequences of such a confession. For these reasons the Commission places limited reliance on his confession to having been a sniper.
The Commission met a number of former Qadhafi soldiers being held in Misrata.439 It is unclear whether the thuwar holding these detainees have specific evidence linking these detainees to specific crimes.
The Commission was told that detainees are now – as of February 2012 – being referred to a three-judge panel that determines whether the evidence is strong enough to continue the detention.440 The Commission understands that other judicial review committees are operating in limited circumstances elsewhere.441 While the existence of a review in these cases is positive, the Commission is concerned these are being conducted in violation of Libya’s human rights’ obligations. It is unclear, for instance, the extent to which this review is independent and whether statements they have made under torture and coercion are in fact being used in the determination of their continued detention. The Commission is also concerned that the detainees have not been allowed to consult counsel.