(July 26, 2019) On June 19, 2019, Afghanistan’s Acting Minister of the Ministry of Mines and Petroleum (MOMP), Narges Nehan, announced that the Ministry had begun a country-wide survey to identify and ban the illegal extraction of major metals and mineral resources, whose value, according to the Afghanistan Geological Survey, is estimated to be worth over US$1 trillion. (Afghanistan- Government Says to Ban Illegal Mining, MIDDLE EAST NORTH AFRICA FINANCIAL NETWORK (MENAFN) (June 19, 2019); Afghanistan Extractive Industries Transparency Initiative (AEITI): Production, EITI (last updated Feb. 27, 2019).) Earlier, in January 2019, the MOMP released a statement claiming that the government had stopped the illegal extraction of natural resources at 584 sites across the country and encouraged 312 individuals who were involved in illegal mining to sign formal contracts. (Afghanistan Stops Illegal Extraction of Natural Resources in 584 Sites, KHAAMA PRESS NEWS AGENCY (Jan 12, 2019).)
Recognizing that an “open and accountable mining sector … represents the largest opportunity to increase growth rates in the country,” the government of Afghanistan also in 2019 released its new roadmap and reform strategy for the mining sector. (Ministry of Mines and Petroleum, Mining Sector Roadmap + Reform Strategy: Extractive Industries 5 (2019).) The strategy is divided into five core pillars to address current challenges in the sector, including “transparency and accountable governance.” In the document, the government commits to “take steps to develop a strategy to combat and formalize illegal mining,” putting particular emphasis on confronting illegal artisanal and small-scale mining (ASM). (Id. at 56.) As part of its implementation schedule for the strategy, the government plans to map illegal mining activities “and create a registry of companies and actors involved in illegal mining.” (Id. at 66.) The government also appears to have established a Security Coordination Committee within the National Security Council (NSC)–an executive government body led by the president that decides on issues related to national interests–that would protect mining sites and prevent illegal mining. (Id.) According to one news report, the Committee is led by the MOMP and the Directorate of the National Security Council, and consists of “permanent and temporary members from the MOMP, Ministry of Interior, Ministry of Defense, and National Directorate of Security.” (Afghanistan Stops Illegal Extraction of Natural Resources in 584 Sites, supra.) The strategy also calls for improving coordination with customs agencies for monitoring mining exports at border points. (Ministry of Mines and Petroleum, supra, at 66.)
Article 9 of Afghanistan’s Constitution stipulates that “[m]ines and other subterranean resources as well as historical relics shall be the property of the state.” (CONSTITUTION OF AFGHANISTAN art. 9, RASMI JARIDAH [OFFICIAL GAZETTE] No. 818, 1382 , Ministry of Justice website (in Dari and Pashto), unofficial English translation, ILO website.) On the basis of article 9, which requires that the “[p]rotection, management and mode of proper utilization of the public properties … be regulated by law,” Afghanistan’s legislature passed the Afghanistan Mining Materials Law in 2005. (Afghanistan Mining Materials Law], RASMI JARIDAH No. 857, 1384  (in Dari and Pashto), Ministry of Justice website.) Since then, Afghanistan’s legislature has passed several versions of its Minerals Law regulating mines, the newest of which was enacted in 2018. According to article 15 of the 2018 Minerals Law, the state is the owner of the mines, and all natural minerals are the property of the state. Article 16 stipulates that unlicensed mining is illegal. (Minerals Law arts. 15–16, RASMI JARIDAH No. 1315, 1397  (in Dari and Pashto), Ministry of Justice website.)
According to the Penal Code of Afghanistan, illegal extraction is a punishable offense, the punishments for which are based on the nature and circumstances of the crimes committed and the value of the minerals extracted. Punishments range from short-term imprisonment (under one year) to long-term imprisonment (from 10 to 16 years). (PENAL CODE, RASMI JARIDAH No. 1260, 1396 , arts. 786, 788–789 (in Dari and Pashto), Ministry of Justice website.)
According to the United States Institute of Peace (USIP), “the majority of active mine sites in Afghanistan are neither government regulated nor government controlled, even though—according to the law—all mineral resources are the property of the state.” (Sadaf Lakhani & Julienne Corboz, Illegal Mining in Afghanistan: A Driver of Conflict, PEACEBRIEF 226 (United States Institute of Peace (USIP), Washington, D.C.), July 2017), at 1. A government report from 2018 highlighted a number of categories of illegal mining in Afghanistan including “[m]ining being undertaken in areas that are outside the Government’s control” such as mines that are operated under the control of illegal armed groups that do not have a contract with MoMP, and parliamentarians and local officials of various “[g]overnment agencies, who own, control or have an interest in mining activities, despite bans on this involvement.” (Ministry of Mines and Petroleum, Ministry-Wide Vulnerability to Corruption Assessment: Final Report 62 (Oct. 2018).) According to mining expert Mohmammad Ismail Amin, unregulated and illegal extraction of minerals in Afghanistan has contributed to prolonging the conflict there because it has helped finance insurgent groups and various criminal mafias and has also “deprived the government of Afghanistan of revenue owed in terms of loyalties and taxes.” (Mohammad Ismail Amin, Illegal Mining: Headache for Afghanistan Government, International and Local Investors – OpEd, EURASIA REVIEW (Feb. 12, 2018).) International and Afghan NGOs have also stressed that delays in developing the new mining Law and lack of institutional capacity to develop the mining sector have also fueled corruption and illegal mining. (Agnieszka Pikulicka-Wilczewska, Why Is Afghanistan Unable to Extract Its Vast Mineral Wealth?, AL JAZEERA (May 28, 2019).)
Prepared by Hafizullah Seddeqi, Law Library intern, under the supervision of Tariq Ahmad, Foreign Law Specialist.