Afghan child custody case exposes abuses during US war

On September 5, 2019, US forces and Afghan allies conducted a night raid on a rural hamlet in southern Afghanistan. What happened during the raid remains unclear, but by the time 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 handed over the baby, known as “L” in court documents, to her Afghan cousin and his wife, in accordance 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 Virginia court had awarded custody of L to a US Marine stationed in Afghanistan. L’s relatives, who have not seen the now 3½-year-old toddler for a year, speak of 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 unnoticed facet of the war in Afghanistan that ended with the withdrawal of US forces a year ago: the US failure to fairly account for civilian deaths in so-called night-time raids.

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

Not all civilian deaths in wartime are violations of this Laws of Warbut warring factions have an obligation to investigate possible war crimes. During the conflict, when asked about possible civilian casualties, the US military often replied that all those killed were insurgents. Rarely has information been provided showing that serious investigations into incidents involving civilian deaths have been carried out. During nighttime raids – like the attack that killed L’s family – even less evidence was offered, especially when the CIA was involved.

The Department of Defense recently announced a plan to investigate operations that may have injured civilians, but Defense Secretary Lloyd Austin said he did not want to investigate previous cases. This is a mistake. There are countless Afghans like L. who have a right to know why their families were killed.

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