This comment reviews the Supreme Court of Canada’s May 2008 decision in Canada (Justice) v. Khadr, in which the Court announced an exception to its June 2007 holding in R. v. Hape. Hape held, on international legal grounds, that application of the Canadian Charter of Rights and Freedoms to the acts of Canadian officials abroad is “impossible.” Khadr held that this was not so if the acts of Canadian officials abroad amount to participation in a process that violates Canada’s international legal obligations. The author welcomes this partial retrenchment of the Hape principle, which, it is argued, is ill-founded in international law. However, the author is also critical of the Court’s failure to engage directly with Hape's many flaws or to justify in any way the seemingly arbitrary exception to it propounded in Khadr. These failures, it is argued, serve only to deepen the legal and logical incoherencies that currently characterize, in the name of respect for Canada’s international legal obligations, the rules governing the extraterritorial applicability of the Charter.

This article presents an account of international law and its possible future that revolves around three key themes: responsibility, fraternity, and sustainability. These three themes were promoted by Charles Doherty Gonthier, visionary justice of the Supreme Court of Canada from 1989 to 2003, for whom the inaugural lecture where this article was presented is named.

Since the Second World War, there has been a constant decrease of inter-state conflicts. In sharp contrast, the level of intra-state violence has not declined and has even reached unprecedented peaks. This points to a striking discrepancy between the rejection of violence at the inter-state level and the wide leeway that is still afforded to the use of violence at the intra-state level and to external interferences fueling it. This article takes stock of the main features (and serious flaws) of the existing legal framework on aid to governments or insurgents in internal conflict situations. On the basis of a combined legal and conflict-management analysis, the author proposes a radically different approach and formulates a number of legal and policy recommendations on how to tackle the complex phenomenon of foreign intervention in civil wars, where enormous human, economic, and social implications are at stake.