A/HRC/44/38 36. States parties engaged in acts of aggression, as defined in international law, resulting in deprivation of life, violate, ipso facto, article 6 of the International Covenant on Civil and Political Rights, 76 whether or not they also violate international humanitarian law. States parties that fail to take all reasonable measures to settle their international disputes by peaceful means may fall short of compliance with their positive obligation to ensure the right to life,77 a link not established by or under international humanitarian law. 37. These differences have, for years, been the subject of debates largely dominated by arguments over the lex specialis doctrine, which proclaims that the body of law created for a particular situation should govern that situation, taking primacy over other legal regimes. The application of lex specialis to the relationship between international humanitarian law and international human rights law dates back to 1996.78 It recognizes that the protection offered by international human rights law does not cease in times of war, except under derogations, but the definition of what is considered to be arbitrary corresponds, according to the International Court of Justice, to “the applicable lex specialis, namely, the law applicable in armed conflict”.79 Under this approach, if the application of international humanitarian and human rights law lead to different outcomes, the lawfulness of a killing would be assessed according to humanitarian law standards and tests.80 38. The doctrine’s conceptual clarity is illusory, however. First, the notion of a lex specialis that displaces or modifies more general bodies of law is not supported by the rules governing the relationship between different legal regimes in international or domestic law. Second, there is little State practice or opinion juris supporting the theory. Until 1996, there was no suggestion of a rigid classical division between the law of war and the law of peace, nor any kind of overarching principle whereby special law overrode general law. 81 After 1996, the International Court of Justice itself changed direction. In its judgment on Democratic Republic of the Congo v. Uganda, it made no reference to lex specialis, determining instead that “both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration”.82 39. Finally, lex specialis would be of limited use when applied to targeted killings carried out by drones operating in the territory of third States. The International Committee of the Red Cross (ICRC) holds that international humanitarian law does not permit the targeting of persons directly participating in hostilities who are located in non-belligerent States because otherwise the whole world would potentially be a battlefield. 83 That position has been endorsed by others.84 40. The Special Rapporteur believes that situations resulting in differentiated assessments are few and far between. Care must be taken not to create fictional conflicts in order to address legal distortions established by some States. To the extent that uncertainty exists, however, certain steps can be taken to bring clarity. 41. The first priority is to determine whether, on the basis of a strict and objective reading of the elements constituting armed conflict, a situation amounts to an international or a non76 77 78 79 80 81 82 83 84 Human Rights Committee, general comment No. 36, para. 64. Ibid., para. 70. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226. See also Marko Milanović, “The lost origins of lex specialis”, in Theoretical Boundaries of Armed Conflict and Human Rights, Jen David Ohlin, ed. (Cambridge University Press, 2014). Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at p. 240, para. 25. This opinion was postulated by the Russian Federation in its written statement and comments of 19 June 1995 on the issue of the legality of the threat or use of nuclear weapons and by the United States in its written statement of 20 June 1995. Milanović, “The lost origins of lex specialis”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168, at p. 242, para. 216. A/HRC/25/59; A/68/389; www.icrc.org/eng/resources/documents/interview/2013/05-10-droneweapons-ihl.htm; https://cms.webbeat.net/ContentSuite/upload/cav/doc/Main_conclusions _of_CAVV_advice_on_armed_drones(1).pdf. A/HRC/25/59; A/68/389; https://cms.webbeat.net/ContentSuite/upload/cav/doc/Main_conclusions _of_CAVV_advice_on_armed_drones(1).pdf. 11