ICCPR Case Digest




Submission: 2014.09.01

View Adopted: 2019.03.28

Hadji Hamid Japalali v. The Philippines

Extra-judicial killing in Philippines constitutes arbitrary deprivation of life, violation of the right to effective remedy

Substantive Issues
  • Effective remedy
  • Fair trial
  • Right to life
Relevant Articles
  • Article 14.1
  • Article 2 - OP1
  • Article 2.3
  • Article 5.2 (b) - OP1
  • Article 6
Full Text


The author is a national of the Philippines who claimed on his own behalf and on behalf of his deceased brother and his brothers wife, that the state party violated their rights under article 6, and that he himself was a victim of a violation of article 2(3), read in conjunction with article 14 (1) of the Covenant.

On the morning of 8 September 2004, the author's deceased brother and his wide were repeatedly shot with rifles by eight members of the Philippine army while they were sleeping in their home. The "operation" lasted 10 minutes, whereby 32 soldiers conducted a strike on the house. As the victims were allegedly being carried to safety, the soldiers continued to shoot. The author's brother died in the attack, and his sister in law died shortly after.

The Office of the City Prosecutor later charged the eight soldiers with two counts of homicide. While the court found that those accused had caused the deaths, the court considered they had acted in compliance with a lawful order issue by a supervisor. The court found it mystifying why the soldiers would have continued to shoot at the victims as they were being tended to, however could not establish their guilt beyond reasonable doubt. 

The author claimed that there is no right of appeal under Philippine law, based on the prohibition of double jeopardy in the constitution. 


  • The author claims that the victim's rights under article 6 were violated. Even if the orders were given by a superior, these orders were unlawful, and the resulting deaths still amounted to an arbitrary deprivation of life.
  • The author argued that throughout the process, he was left without an effective remedy which is required to be provided for a violation of the Covenant under article 2(3). 
  • The author further alleges that his right to a fair and public hearing by an independent and impartial tribunal as guaranteed by article 14(1) was violated. 


The Committee noted the authors claim under article 14(1), however found that the author was not a party to the national criminal proceedings against those responsible for the death of his brother and sister and law. The Committee therefore found this part of the communication inadmissible.


The Committee recalled that the right to life is the supreme right from which no derogation is permitted, even in situations of armed conflict and other public emergencies which threaten the life of the nation.

The Committee further recalled that the Covenant prohibits the arbitrary deprivation of life, that is, deprivation that is broadly speaking, inconsistent with international or national law. In this manner, the Committee reiterated the principles of the use of force in law enforcement, noting that arbitrary must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law as well as elements of reasonableness, necessity, and proportionality. The use of potentially lethal force in law enforcement is an extreme measure, which should be resorted to only when strictly necessary to protect life or prevent serious injury from an imminent threat. 

In this manner, the Committee found that the killing was not strictly necessary for protecting life, and in this light the state party had violated the victims (Bakar Japalali and Carmen Baloyo-Japalali) of their lives in violation of article 6, paragraph 1, of the Covenant.

On the question of a violation of article 2(3), the Committee noted that the state party had not provided any indication that sufficient measures were undertaken to establish whether legal force used in an area of civilian residence, was absolutely necessary, nor had they established that an effective investigation was undertaken into the killings in order to determine their legality. 

In light of the above, the Committee found that the state party violated the author’s rights to an effective remedy.


The Committee noted that the state party is under an obligation to provide the authors with an effective remedy, including making full reparation to individuals whose Covenant rights have been violated. This includes an obligation to:

  • Conduct a thorough and effective investigation into the arbitrary deprivation of life of Bakar Japalali and Carmen Baloyo-Japalali by army soldiers;
  • Prevent similar violations in the future.
  • Provide the author and his family with detailed information about the results of this investigation; and
  • provide adequate compensation to the author. 

Notwithstanding the terms of article III, Section 21 of the Philippine Constitution, the State party should ensure that it does not restrict enjoyment of the right to an effective remedy for serious human rights violations such as extrajudicial executions. 

Separate Opinions

Individual opinion by Mr. Gentian Zyberi (concurring)

  • Mr. Gentian Zyberi concurred with the majority reasoning however felt he must express the rationale behind the fundamental principles of IHL that apply to the attack, namely precautions, distinction and proportionality.
  • Zyberi notes that the case at hand arises out of a military occupation in the context of a non-international armed conflict between the Philippine armed forces and the Moro National Liberation Front. IHL applies in this context, in parallel with international human rights law.
  • IHL further requires that in the conduct of military operations, constant care must be taken to spare civilians and civilian objects. Further, any practices inconsistent with IHL, including the targeting of civilians, civilian objects and objects indispensable to the survival of the civilian population, indiscriminate attacks, failure to apply the principles of precaution and proportionality, and the use of human shields, would also violate article 6 of the Covenant.
  • If circumstances permit, advance warning must be given for military operations which affect the civilian population. In this manner, such serious failures by an armed unit of the Philippine government engage the responsibility of that state under article 6.


The Committee requested the state party provide a follow up information on measures taken within 180 days (of before 28 September 2019).

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