The International Criminal Court’s chief prosecutor says he will investigate war crime allegations against Canadians over the handling of Afghan detainees if Canada won’t.

Prosecutor Luis Moreno-Ocampo says in a documentary soon to be aired on TVO that Canadian officials are not immune to prosecution if there is evidence that crimes were committed by handing over detainees to face torture.

When Toronto filmmaker Barry Stevens asked Moreno-Ocampo in his film, Prosecutor, if the ICC would pursue a country like Canada over its role in Afghanistan, he replied:

“We’ll check if there are crimes and also we’ll check if a Canadian judge is doing a case or not . . . if they don’t, the court has to intervene. That’s the rule, that’s the system, one standard for everyone.”

Moreno-Ocampo could not be reached for further comment about the case Thursday when attempts were made by the Star.

Officials at the Department of Justice and Department of National Defence were unable to comment Thursday and said they had not seen the film.

Some legal experts have suggested the Canadian government’s dismissal of calls to launch a judicial probe into the allegations has left the door open for outside scrutiny.

“There is no question that there has been a deliberate refusal of our domestic judicial system to have it examined,” said Stuart Hendin, a University of Ottawa scholar specializing in armed conflict and human rights, noting that Canada is a signatory to the Geneva Conventions and UN Convention Against Torture.

Hendin argued there is “sufficient information” that Canadians, including senior military personnel authorizing and implementing the transfers of detainees, knew there was a substantial risk of torture and abuse.

“That being the case there is very real and credible exposure to prosecution,” he said.

Parliamentary hearings probing the allegations were shut down in 2009 after Conservative MPs boycotted the proceedings. Earlier this month, the justice department went to court in a bid to limit the findings of an independent report by the Military Police Complaints Commission, probing whether the military police knew that detainees transferred to Afghan custody faced a substantial risk of torture.

The government had refused to turn over military and other government documents dealing with the detainee case until threatened with contempt of Parliament. Those documents were subsequently vetted by a judicial panel and ad hoc committee of MPs, but still remain secret, their release on hold because of the election.

Parliamentary debate has at times been dominated or paralyzed by the Afghan detainee affair but discussed only in the abstract during the election campaign — usually to underscore criticism about the Conservative government’s indifference for parliamentary democracy.

“It’s clear that Canada is not dealing with the issue and the ICC can look at the issue on its own,” said Paul Champ, the lawyer representing Amnesty International and the B.C. Civil Rights Association, which launched the complaint with the MPCC.

Stevens’ film made its debut at the Amsterdam documentary film festival last fall but will air for the first time in Canada on May 11. It’s an intimate portrayal of the somewhat maverick Moreno-Ocampo, tracing his path from Argentina’s Trial of the Juntas to the Democratic Republic of the Congo as the ICC’s first prosecutor.

Moreno-Ocampo says in the film that he has been monitoring reports of alleged crimes in Afghanistan, including those committed by the Taliban.

Stevens said he raised the Canadian reference when confronting the prosecutor about criticism that the court is “white man’s justice,” concentrating only on African nations.

“Just from a personal filmmakers’ point of view, I didn’t like the kind of ivory tower human rights attitude in the West, where we look like countries like the Congo and fail to look critically at our own behaviour,” Stevens said in an interview.

There are three ways in which a case is referred to the ICC — by a member country directly (both Afghanistan and Canada are members), at the behest of the UN Security Council (as is the case with Libya), or if the prosecutor initiates the investigation after determining the host country has failed to the job.

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Moreno-Ocampo has already taken that initiative, issuing summons last month for six Kenyan government officials accused of crimes against humanity during the country’s post-election violence in 2007-2008. But targeting NATO countries in Afghanistan would be politically fraught and few believe Moreno-Ocampo would go that far.

Stevens said that some of Moreno-Ocampo’s remarks could be viewed in the context that the prosecutor believes part of his job involves being a human rights promoter.

“Even if he doesn’t open an investigation into Afghanistan, and even if he never went after the Canadian issue, he still sees that as part of his job to remind Canadians that they are subject to the same law.”

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