Afghan Child Custody Case Exposes US Wartime Abuses

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US special operations forces conduct combat operations in southeast Afghanistan, May 2019.
© 2019 Sgt. Jaerett Engeseth/US Army

On September 5, 2019, US armed forces and Afghan allies carried out a night raid on a rural hamlet in southern Afghanistan. What happened during the raid remains unclear, but when the shooting stopped, a man and woman and five of their six children were dead. Their 2-month-old baby girl was injured but survived.

Afghan authorities turned over the baby, known in court documents as “L,” to her Afghan cousin and his wife, consistent with Afghan and international law. In 2021, the couple and L were evacuated to the United States under irregular circumstances. To their shock, they learned that a court in Virginia had awarded legal custody of L to a US Marine who had been deployed in Afghanistan. L’s relatives, who haven’t seen the now 3½ year-old toddler in a year, are calling the action a kidnapping.

The New York Times and the Associated Press have reported on the disturbing custody battle. But the case also brings to light a largely ignored facet of the war in Afghanistan, which ended a year ago with the departure of US forces: the failure of the US to fairly account for the deaths of civilians during so-called night raids on homes.

Over the last 20 years, Human Rights Watch has investigated similar raids and found that many were based on faulty intelligence or false presumptions. Unlawful killings of civilians increased in 2018-2019 after US forces adopted a more “aggressive” approach to operations. A few months before the raid that orphaned L, the United Nations reported a significant increase in civilian casualties during such raids.

Not all civilian deaths in wartime are violations of the laws of war, but warring parties have an obligation to investigate possible war crimes. During the conflict the US military often responded to queries about possible civilian losses that all those killed were insurgents. Rarely was information provided showing that serious investigations into incidents of civilian deaths were carried out. During night raids – such as the attack that killed L’s family – even less  evidence was offered, especially if there was CIA involvement.

The Defense Department has recently announced a plan for investigating operations in which civilians may have been harmed, but Defense Secretary Lloyd Austin has said he doesn’t want to investigate past cases. That’s a mistake. There are countless Afghans like L. who are entitled to know why their families were killed.

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