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Abstract:

As a result, to its cohesive economy, social level of its citizens, stable security situation, the topic of human trafficking is more topical particularly in the Gulf region, including the State of Kuwait.The strong parliament in Kuwait and mentality of Kuwaiti citizens supported the willingness to discuss human trafficking and decrease human right violations. Accordingly, Kuwait was one of the first states to ratify international conventions against human trafficking and to adopt national legislation that criminalize such inhuman practices. It is necessary to highlight the current topic from two sides, first, the topic of trafficking in persons as a whole, and, second, the State of Kuwait's dealing with the issue, thus, Human Trafficking is an ancient-modern phenomenon on which points of views differthroughout the ages and the different civilizations and monotheistic religions, to the era of internationalization, which has seen an increasing interest in abating, to an extend where human trafficking is classified as an organized crime under the United Nations Convention against Transnational Organized Crime in November 2000, and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children which The State of Kuwait has ratified. Accordingly, Kuwait enacted Law No. 91 of 2013 on Combating Trafficking in Persons and Smuggling of Migrants, was it enough, effective to fight such crime? That what will we explore.

introduction

The general rule is that anything that undermines the dignity and humanity of people must be criminalized. However, the present time is full of practices that degrade human dignity, with one of the most contemptuous being human trafficking. This crime has recently gained media attention in some regions more than others, and Kuwait has been accused of being involved due to its robust economy, high social status of its citizens, stable security situation, strong parliament, and the openness of its rulers and citizens, who are ready to discuss various legal issues, especially after the country's Emir was appointed as a Humanitarian Leader by the United Nations. The topic "Combating Human Trafficking Between International Law and National Legislation of Kuwait" is very important and does not receive enough attention from an academic research perspective. The lack of previous studies has largely motivated us to choose this topic for research to shed light on both the general theoretical and specific practical dimensions of human trafficking in Kuwait by attempting to answer the central question: What is human trafficking? And to what extent can it be said that the international legal system and Kuwait's national legislation have been sufficient in addressing it? We have attempted to answer this question using a descriptive-analytical approach that relies on temporal and spatial comparison by examining legal texts and identifying their weaknesses, in line with a dual research plan. In the first unit, we discussed the general framework of the concept of human trafficking by exploring the historical background of the idea of combating it in the first section, then attempting to define human trafficking and clarify its components and forms in the second section, and dedicating the third section to explaining the reasons for the exacerbation of the human trafficking phenomenon and its consequences. The second unit of this research is dedicated to shedding light on combating human trafficking in Kuwait through three sections. In the first, we discussed its policy in dealing with human trafficking at the international level with its conviction of the necessity of international cooperation on one hand and combating it internally by enacting a specific law on the other. The second and third sections are dedicated to adapting Kuwaiti legislation to align with global trends in combating and suppressing human trafficking, as follows:

Chapter One: The general framework of the concept of human trafficking:

Human trafficking is a global crime that threatens almost all countries, both internally and internationally. Some have defined it as "all legitimate and illegitimate actions that turn a human being into a mere commodity or victim to be dealt with by professional intermediaries across national borders for the purpose of exploiting them in low-wage labor, sexual activities, or similar, whether the act is committed with the victim's consent, under coercion, or through any other form of slavery." Others have defined it as "the recruitment or transportation of people by force or deception for the purpose of exploitation in various forms, such as sexual exploitation, forced labor, forced service, begging, slavery, organ trade, or other forms of exploitation." Another definition describes it as "the exploitation and provision of transportation and shelter, and the reception of people through displacement, the use of force, or any other means of pressure, fraud, or exploitation of rights or weaknesses in children or women, or the delivery of money or benefits to obtain the consent of one person to control another for the purpose of exploitation." All these definitions share a common framework, which is the treatment of human beings as commodities for profit, by subjecting them or those who manage their affairs legally or religiously to the pressure of need or fear, either within the same state or across multiple states. In this chapter, we explore the emergence and evolution of the idea of human trafficking through ancient times, then the stance of heavenly religions on it, and how the world has addressed it both before and after the concept of internationalization emerged—first under the League of Nations, then the United Nations and the activities of its affiliated bodies. We also attempt to define the concept of human trafficking both linguistically and terminologically, discussing the legal definition provided by specialized international texts, identifying the forms of human trafficking, and clarifying the reasons for the resurgence and spread of this phenomenon in the present era, along with the potential consequences it may entail, as outlined in the following sections:

The first section: The development of interest in the idea of ​​combating human trafficking:

The first requirement: the historical reference to human trafficking before the era of codification:

First: Human Trafficking in Ancient Times: Human trafficking cannot be separated from slavery, as it is a form of it. Human trafficking today can be considered the modern equivalent of the slave trade in the 19th century. The development of human trafficking and the fight against it are closely linked to the development and abolition of slavery. This phenomenon is as old as history itself, with societies coexisting with it through the ages until it was decisively banned in the first half of the 20th century. What was once a social phenomenon protected by customs transformed into a criminal act fought by the entire world. Human trafficking was one of the most prominent forms of trade in ancient societies, especially in the Pharaonic, Greek, Roman, and Babylonian civilizations. It continued to expand, reaching a point where entire continents were bought and sold for the benefit of individuals or authorities. Wars and their expansion further entrenched human trafficking, as prisoners of war were considered spoils and treated as commodities to be bought and sold. Second: Human Trafficking in Heavenly Religions: The perception of slavery and the slave trade as a fixed phenomenon persisted until the emergence of heavenly religions, which began advocating the abandonment of certain forms of it. Judaism, for instance, called for the prohibition of enslaving and trading Jews; they could not be enslaved through captivity or purchase. In Christianity, churches worked to collect money to buy the freedom of slaves and captives. As for Islam, which emerged in the 7th century CE—a time dominated by wars, slavery, ignorance, and the logic of power that imposed itself in all matters without conditions or restrictions—the Sharia (Islamic law) introduced strict texts that limited the reasons for enslavement and opened the door to freeing slaves, making it an expiation for sins in Islamic law. Islam also provided numerous indications against slavery and exploitation, protecting and upholding the rights to equality, personal freedom, human dignity, the sanctity of women, and the protection of children. Among these indications are: - The verse: "O mankind, fear your Lord, who created you from a single soul and created from it its mate and dispersed from both of them many men and women..." (Quran 4:1). - "And We have certainly honored the children of Adam..." (Quran 17:70). - "The freeing of a believing slave..." (Quran 4:92). - "Or freeing a slave..." (Quran 90:13). - "And do not compel your slave girls to prostitution, if they desire chastity, to seek the temporary interests of worldly life. And if someone should compel them, then indeed, Allah is [to them], after their compulsion, Forgiving and Merciful." (Quran 24:33). **Third: The Move Towards the Internationalization of Combating Human Trafficking:** Between the perspective introduced by heavenly religions and the current view on the issue of human trafficking, there was a long period during which timid attempts were made to combat the phenomenon, during which a great deal of human misery occurred. The contours of this combat became more apparent only at the beginning of the 19th century. In 1815, the first declaration aimed at eradicating the slave trade worldwide was issued by the abolitionist movement, which sought to end slavery and halt the transatlantic human trade, as well as to free slaves in European colonies in the United States. Additionally, the period between 1815 and 1957 saw the signing of approximately 300 international agreements focused on slavery and the slave trade. The Brussels Act of 1890 included measures to combat and prevent the slave trade, considering human trafficking a low-risk, high-reward operation that needed to be addressed by establishing an office to supervise and monitor maritime routes and ports to prevent the shipping and sale of slaves. In 1910, the International Agreement for the Suppression of the White Slave Traffic, the International Convention for the Suppression of the White Slave Traffic, and the International Convention for the Suppression of the Traffic in Women and Children were signed. This was considered a significant step that made the world more aware of the severity of the phenomenon and the necessity of dealing with it more firmly and seriously.

The second requirement: Human trafficking in the era of internationalization:

First: Global Efforts to Combat Human Trafficking 1. Under the League of Nations: The issue of slavery and human trafficking was a top priority for the League of Nations. The 1926 Slavery Convention was signed, followed by the 1956 Supplementary Convention, which was crucial in establishing the general framework for concepts and methods of combating the slave trade. In 1933, the International Convention for the Suppression of the Traffic in Women of Full Age was signed, prohibiting and punishing human trafficking, even if done with the consent of the women involved. However, these efforts did not effectively reduce the slave trade in practice. 2. Under the United Nations: The UN General Assembly presented the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others to member states, who adopted it in 1949. Additionally, the Universal Declaration of Human Rights, in its Article 4, stated, "No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms." Similarly, Article 7 of the International Covenant on Economic, Social and Cultural Rights prohibited exploitation in labor as a form of slavery. Article 8 of the International Covenant on Civil and Political Rights explicitly banned slavery, servitude, exploitation, forced labor, and compulsory labor. The UN Security Council condemned acts of human trafficking, particularly those committed by the Islamic State in Iraq, and expressed its intent to curb human trafficking in armed conflicts and to include it in the work of the sanctions committee. The Security Council's decisions are binding, and any member state of the UN that violates them may face sanctions. The Rome Statute of the International Criminal Court (ICC) considered slavery and the slave trade as crimes against humanity, thus falling under the court's jurisdiction. The Convention on the Rights of the Child prohibited the trafficking and exploitation of children, and the Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography was attached to it. The Convention on the Elimination of All Forms of Discrimination Against Women also addressed human trafficking. In 1998, the General Assembly established a specialized committee to combat transnational organized crime, leading to the adoption of the United Nations Convention against Transnational Organized Crime. Three protocols were attached to the convention: the Protocol against the Smuggling of Migrants by Land, Sea, and Air; the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms. The General Assembly continued to pass resolutions focused on combating transnational organized crime and human trafficking. Unlike Security Council resolutions, General Assembly resolutions are not binding except for those states that voted in favor of them, unless the content of these resolutions is based on established customary rules, in which case they are binding on all states. Second: Regional Efforts to Combat Human Trafficking There is significant regional interest in combating human trafficking, with notable examples including: 1. Protocol on the Rights of Women to the African Charter on Human and Peoples' Rights: The African continent is a major target for human trafficking. Article 4 of the protocol states that "States Parties shall take appropriate and effective measures to prevent and condemn trafficking in women, prosecute the perpetrators, and protect women most at risk." 2.The African Charter on the Rights and Welfare of the Child (1999): Article 29 of the charter requires states to take appropriate measures to prevent "the abduction, sale, or trafficking of children for any purpose or in any form by any person, including the child's parents or legal guardians." 3. The American Convention on Human Rights: Article 6 of the convention states that "No one shall be subjected to slavery or to involuntary servitude, both of which are prohibited in all their forms, as are the slave trade and trafficking in women. No one shall be required to perform forced or compulsory labor." 4. The Arab Charter on Human Rights: Article 10 of the charter prohibits "slavery, human trafficking in all its forms, and punishes it. Slavery and servitude are prohibited under all circumstances, as are forced labor and trafficking in individuals for prostitution, sexual exploitation, exploitation of others' prostitution, or any other form of exploitation or the use of children in armed conflicts." Article 9 of the same charter states that "the trafficking of human organs is prohibited under any circumstances." Unfortunately, the Arab region still suffers from various forms of human trafficking. The charter does not provide a legal mechanism to combat violations, unlike the European or American courts of human rights, which diminishes the legal value of the charter. 5. Council of Europe Convention on Action against Trafficking in Human Beings: Adopted in 2005, the convention includes various measures such as raising awareness of the dangers of human trafficking, identifying victims, protecting and assisting victims physically and psychologically in their reintegration into society, granting renewable residence permits when necessary, criminalizing human trafficking, and protecting the privacy and safety of victims during judicial proceedings. 6. The European Convention on Human Rights and Biomedicine: The convention emphasizes that organ removal cannot be used for financial gain. 7. Gulf Declaration on Human Rights: Article 3 of the declaration prohibits "slavery, servitude, forced labor, and human trafficking in all its forms and manifestations, especially those targeting women and children." Article 4 states that "the trafficking of human organs is prohibited, and doing so is considered a violation of human rights and a crime punishable by law." As Kuwait is a member of the Gulf Cooperation Council, it is committed to this prohibition and combat. Thus, the international dimensions of human trafficking have become clear, with its legal characterization established and the world convinced of the need to combat it within a general international framework with unified broad lines, allowing each state to formulate its approach in line with its legal, economic, social, and cultural circumstances. First: Global Efforts to Combat Human Trafficking 1. Under the League of Nations: The issue of slavery and human trafficking was a top priority for the League of Nations, leading to the signing of the 1926 Slavery Convention, later supplemented by the 1956 Supplementary Convention. These were crucial in establishing a general framework for concepts and methods to combat slavery. The International Convention for the Suppression of the Traffic in Women of Full Age was signed in 1933, prohibiting and punishing the trafficking of adult women even with their consent. However, these efforts failed to significantly reduce the reality of the slave trade. 2. Under the United Nations: The General Assembly presented the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others to member states, who adopted it in 1949. Furthermore, the Universal Declaration of Human Rights states in Article 4 that "No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms." Similarly, Article 7 of the International Covenant on Economic, Social and Cultural Rights prohibits exploitation in labor as a form of servitude. Article 8 of the International Covenant on Civil and Political Rights explicitly prohibits slavery, servitude, and forced labor. The UN Security Council has condemned acts of human trafficking, especially those committed by the Islamic State in Iraq, and has expressed its intention to curb human trafficking in the context of armed conflicts and to include it in the work of the sanctions committee. The Security Council’s decisions are binding, and any violation by a UN member state can lead to sanctions imposed by the Security Council. The Rome Statute of the International Criminal Court considers slavery and the sale of slaves as crimes against humanity, thus falling under the court's jurisdiction. The Convention on the Rights of the Child prohibits the trafficking and exploitation of children, as does the Optional Protocol on the sale and exploitation of children in prostitution and pornography, and the Convention on the Elimination of All Forms of Discrimination Against Women. The General Assembly also established a committee in 1998 to combat transnational organized crime, resulting in the adoption of the United Nations Convention against Transnational Organized Crime. The convention includes three protocols: the Protocol against the Smuggling of Migrants by Land, Sea, and Air; the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms. However, unlike Security Council decisions, the General Assembly's decisions are not binding unless they reflect established customary rules. Second: Regional Efforts to Combat Human Trafficking There is a clear regional interest in combating human trafficking, with notable examples including: 1. Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa: Given that the African continent is a target for human trafficking, Article 4 of the protocol states that "States Parties shall take appropriate and effective measures to prevent the trafficking of women, condemn it, prosecute those involved, and protect women most vulnerable to it." 2. African Charter on the Rights and Welfare of the Child (1999): Article 29 of the charter mandates that states take appropriate measures to prevent "the abduction, sale, and trafficking of children for any purpose and in any form, by any person, including parents or legal guardians, and the use of children in all forms of begging." 3. American Convention on Human Rights: Article 6 of the convention prohibits slavery, servitude, the slave trade, and trafficking in women in all their forms. 4. Arab Charter on Human Rights: Article 10 of the charter prohibits slavery, the trafficking of individuals in all forms, and punishes such acts. It also prohibits forced labor and the trafficking of individuals for prostitution, sexual exploitation, or other forms of exploitation. The charter, however, does not provide a legal mechanism to combat violations, unlike the European or American Courts of Human Rights, which diminishes its intended legal impact. 5. Council of Europe Convention on Action against Trafficking in Human Beings: Adopted in 2005, the convention outlines measures such as raising awareness about the dangers of human trafficking, identifying victims, protecting and assisting them physically and psychologically, and granting renewable residence permits when necessary for victims’ personal circumstances. It also criminalizes human trafficking and protects victims' privacy and safety during legal proceedings. 6. European Convention on Human Rights and Biomedicine: The convention emphasizes that the removal of organs for profit is not permissible. 7. Gulf Declaration of Human Rights: The declaration prohibits slavery, servitude, forced labor, and human trafficking in all forms, especially those targeting women and children. It also prohibits the trafficking of human organs, considering such practices a violation of human rights and a criminal offense. As a member of the Gulf Cooperation Council, Kuwait is committed to this prohibition and combatting effort. At this point, the international outlines of human trafficking have become clear, its legal characterization has been established, and the world has recognized the need to combat it within a broad international framework, allowing each state to adapt it according to its legal, economic, social, and cultural circumstances. Kuwait’s Legal Definition of Human Trafficking: The Kuwaiti law’s definition aligns with the aforementioned protocol. Article 1/4 of Kuwaiti Law No. 91 of 2013 concerning Combating Trafficking in Persons and Smuggling of Migrants defines human trafficking as: "Recruitment, employment, transportation, harboring, or receiving persons by means of coercion, whether by force, threats, or other forms of abduction, fraud, deception, abuse of power or influence, or exploitation of vulnerability, or by giving or receiving payments or benefits, with the intent of exploitation, which includes the exploitation of prostitution or any form of sexual exploitation, forced labor or services, slavery or practices similar to slavery, or the removal of organs." From Article 1 of the law, it is clear that human trafficking involves the "recruitment, employment, transportation, harboring, or receiving" of individuals, which aligns with the provisions of the aforementioned international protocol. The law includes the term "employment" while excluding "shifting," but this does not significantly impact the interpretation or application of the law, as the focus remains on the more prevalent practices of "recruitment, transportation, harboring, and receiving," which are most common in Kuwaiti society. To clarify, "transportation" refers to the act of the perpetrator changing the victim's place of residence to another location within or outside the country, regardless of the method used. Kuwaiti law only uses the term "transportation" without "shifting," unlike the protocol, which includes both terms. Shifting involves transporting victims in stages through several locations, each of which may be a site of the crime, while transportation typically occurs in a single phase. Therefore, it would have been prudent for the Kuwaiti legislator not to omit or disregard the term "shifting" as mentioned in some Arab legislations. Forms of Human Trafficking: This includes the exploitation of individuals for prostitution or other forms of sexual exploitation, forced labor, practices similar to slavery, or the removal of organs. 1. Human Trafficking for Sexual Purposes: One of the most common forms of human trafficking is the sexual exploitation of individuals through force, fraud, coercion, and manipulation, particularly involving persons under 18 years of age. This type of human trafficking is highly lucrative and difficult to detect. When discovered, its legal characterization is often limited to passport or visa fraud, especially if law enforcement officials and border inspectors are involved. Recently, a ruling by the Criminal Court in Kuwait, the first of its kind, applied the anti-human trafficking law, imposing severe penalties of up to fifteen years for the accused involved in trafficking children, exploiting their vulnerability due to deteriorating security in their home countries, and sexually exploiting them. This indicates the difficulty of escaping punishment for such crimes in Kuwait. In similar cases, local authorities in Kuwait have deported women from Eastern Europe after discovering their involvement in prostitution for monetary gain. However, these cases were not brought before the judiciary, and the authorities merely deported the individuals. 2. Human Trafficking of Children: It is estimated that 1.5 million children are trafficked annually, accounting for 50% of all cross-border trafficking victims. Children are the most targeted group in human trafficking due to their vulnerability, lack of awareness, and the absence of responsibility from their guardians, who may try to exploit them due to extreme poverty. The lack of laws and weak enforcement also play a role in the proliferation of this trade. The international legislator has been stringent in this regard, with Article 3 of the protocol considering human trafficking to have occurred whenever a child or children (under 18 years of age) are involved, even if the act is not accompanied by any of the means listed in paragraph (a) such as coercion or deception. Dealing with children in any form is considered human trafficking. Child trafficking is the most severe form of human trafficking, with children being exploited for sexual tourism, mine testing, and suicide bombings. The Kuwaiti judiciary has condemned the trafficking of children, as seen in a case where the court found that the accused had employed underage children in a massage institute, knowing they were under eighteen, and had assigned them to perform immoral acts with clients, luring them with monetary rewards. This highlights the serious nature of such crimes in Kuwait. Kuwaiti law has not overlooked child protection, with Law No. 21 of 2015 concerning Child Rights penalizing those who ". . . incite children or exploit them in prostitution, pornographic activities, or defame them or sell them. . ." In light of the severe penalties provided by Law No. 91 of 2013 regarding Requirement to Collaborate Internationally in Combating Human Trafficking: At this stage, international cooperation has become crucial in eradicating or reducing human trafficking, as it is fundamental to the success of these efforts. Human trafficking is an organized crime that transcends national borders, necessitating joint international efforts in both legal text and judicial application. Given that the nature of human trafficking extends beyond the jurisdiction of a single state, it is essential that punitive systems also adopt the same cooperative approach to enforce international law and domestic laws concerning human trafficking. This is a principle that Kuwait has embraced. International law serves as a general framework establishing common standards that Kuwait is committed to incorporating into its national laws to effectively curb human trafficking. The core instruments that provide a legal framework for international law regarding human trafficking include the Convention on Organized Crime and its first protocol, which specifically addresses trafficking in persons, while the second protocol focuses on migrants. These instruments represent the latest international legal reference on modern slavery. While the Organized Crime Convention lays out the general provisions and measures to combat organized transnational crimes, the protocol addresses the specific and detailed issues related to human trafficking, which is one of the most prevalent forms of organized crime today. Those involved in human trafficking often engage in other forms of organized criminal activities, such as smuggling migrants, drugs, weapons, or money laundering. Undoubtedly, the Organized Crime Convention sets forth the minimum standards that state parties to the convention, including Kuwait, must comply with. Each state can adopt stricter and more stringent measures beyond these minimum standards. Although Article 1 of the convention emphasizes "promoting cooperation to prevent and combat transnational organized crime more effectively and comprehensively," it also maintains the various distinctions, circumstances, and traditions unique to each state while promoting a unified approach to overcome obstacles to effective transnational cooperation. The convention seeks to facilitate the investigation of criminal activities and the prosecution of offenders comprehensively across borders, both of which are impossible to achieve without fruitful international cooperation. The objectives of the protocol on human trafficking, as stated in Article 2, align with this framework of international cooperation, aiming to prevent and combat human trafficking, protect and assist victims of human trafficking, and promote cooperation among states to achieve these goals. Accordingly, the Kuwaiti legislation aims to establish unified standards in both procedural and substantive aspects to coordinate laws between state parties and avoid significant discrepancies that may hinder international cooperation in combating transnational organized crime. In this context, Article 2, Paragraph 3 of Law No. 91/2013, which deals with human trafficking crimes, emphasizes stringent measures against human trafficking when it has a transnational aspect, considering this (transnational nature) as an aggravating factor, with the penalty extending to the death sentence. Establishment of an Independent Internal System to Combat Human Trafficking in Kuwait: Kuwait is recognized for its unique economic, social, and cultural environment. The country's stable economy, high social standards for its citizens, secure environment, relatively strong parliament, and the openness of its citizens to discuss various legal issues, especially those related to human rights, all contribute to this distinction. On the other hand, the thriving expatriate labor market and the relatively lenient legislation, particularly in areas such as labor contracts, personal status laws, and the minimum age for marriage, have recently sparked media attention, particularly regarding practices that may be classified as human trafficking. This concern has prompted the Kuwaiti government to intervene over the years to establish an internal strategy to combat human trafficking. A comprehensive national strategy to combat human trafficking requires two main components: 1. **Repressive and Combative Measures under National Law**: Kuwait has recognized the need for such measures by enacting Law No. 91 of 2013, which aims to combat human trafficking. This law was an attempt to align with international human rights standards by criminalizing human trafficking and all related practices within its domestic legal framework. Additionally, Kuwait has held legal entities accountable for human trafficking, with the legal representative of such entities being penalized if the trafficking operations were conducted for the entity’s benefit, potentially leading to the permanent or temporary closure of branches or the entire entity. The Kuwaiti legislation also provides a precise definition of human trafficking, which greatly facilitates coordinated and comprehensive measures against human trafficking through Kuwaiti law. 2. **Establishment of a Specialized Institutional Mechanism**: Such a mechanism would ensure the implementation of the specific legislative text, gathering of information, and effective monitoring. In this context, Kuwaiti Law No. 91/2013 grants the Public Prosecution exclusive authority to investigate, prosecute, and handle human trafficking cases. In response to this global trend, the Ministry of Interior, under the umbrella of the General Department of Criminal Investigation, has established a specialized department (Anti-Human Trafficking), which maintains continuous and direct communication with the Public Prosecution. Some countries, such as Qatar, have gone a step further by establishing an independent body dedicated to combating human trafficking within their administrative framework, which is not the case in Kuwait. The legislative reality in many countries suggests the necessity of a similar specialized mechanism in Kuwait, in accordance with the protocol on human trafficking and its combat. All these efforts highlight a genuine intent by the Kuwaiti government to combat human trafficking. We will now examine the effectiveness of Law No. 91/2013 in achieving this goal. Section Two: Criminalization of Human Trafficking in Kuwaiti Legislation: To make this study productive concerning combating human trafficking in Kuwaiti legislation, we will discuss how the law organizes the elements of the crime as follows: First Requirement: The Legal Element of Human Trafficking in Kuwaiti Legislation: The legal element of any crime exists as soon as there is a legal text that criminalizes human trafficking and establishes the penalties that result from its commission. Kuwaiti law has dedicated a specific and independent law, Law No. 91 of 2013, which criminalizes and penalizes human trafficking. Article 1 of this law defines human trafficking as: "Recruiting persons, using them, transporting them, harboring them, or receiving them by coercion, whether through the use of force, threat, or other forms of abduction, fraud, deception, or coercion, or exploiting authority or influence, or exploiting a state of vulnerability, or giving or receiving money or other benefits for the purpose of exploitation, which includes the exploitation of others’ prostitution, or any form of sexual exploitation, forced labor, slavery, practices similar to slavery, or the removal of organs." Upon examining this definition, it aligns with the definition adopted by Article 3, paragraph 1, of the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime of 2000. However, it is noteworthy that the international definition exceeds the national definition of Kuwait by including the phrase "to gain the consent of a person having control over another person for the purpose of exploitation," suggesting that human trafficking could occur even if the victim was not the direct target of the threat or inducement, but rather a person with authority over the victim, such as parents, guardians, or caregivers. Additionally, Kuwaiti law does not mention slavery as a form of human trafficking, while the international definition includes this form of trafficking. The only acceptable justification for the Kuwaiti legislator might be that slavery does not exist in Kuwaiti society and, therefore, does not need to be mentioned, unlike in some other countries where its presence necessitates its inclusion in the international definition. The details of Articles 1/4 -3-4-5-6-7 will be discussed according to their subject matter in the following elements of this section. Second Requirement: The Material Element of Human Trafficking in Kuwaiti Legislation: The material element is an external act of a tangible nature that can be perceived by the senses, the proof of which establishes evidence against the perpetrator of the crime. As previously discussed under the title "Elements of Human Trafficking," the material element is composed of behavior and the means of this behavior, which we will now address, clarifying the impact of the victim's consent on the establishment of the material element of the crime or its non-establishment: First: The Material Behavior in Human Trafficking: Article 1 of Law No. 91 of 2013 regarding combating human trafficking and migrant smuggling defines human trafficking as "recruiting persons, using them, transporting them, harboring them, or receiving them." This definition clearly aligns with the provisions of the aforementioned international protocol, with the use of the term "using" and the exclusion of the term "transferring," which does not significantly impact the interpretation or application of the article, while retaining the terms "recruiting, transporting, harboring, and receiving." We will now explain the meaning of each behavior: 1. Recruiting: Organizing or directing persons, including all activities that attract and entice victims for exploitation in any form of human trafficking. 2. Using: Subjugating and controlling the victims, as well as forcing them to work for the traffickers. 3. **Transporting**: The act performed by the perpetrator to change the victim's place of residence to another location, either within the same country or outside it, regardless of the means of transportation used. It is noted that the Kuwaiti legislator only used the term "transporting" without "transferring," while the protocol included both terms with precise meaning. "Transferring" implies a process that occurs in stages across several locations, each of which may be where the crime occurs, while "transporting" refers to a single-stage movement. It is therefore advisable to include the term "transferring" or a similar term, such as "deportation," which has been used in other Arab legislations, due to its implications on determining judicial jurisdiction. 4. Harboring: Providing a safe place for the victims to stay, either within the same country or abroad, by providing some necessities of life, such as food, drink, and shelter, in preparation for their exploitation. 5. Receiving: Receiving or accepting the victims who have been transported or transferred within the state or across its borders to remove any obstacles to their presence. Receiving occurs in centers belonging to the human trafficking entity and may happen at more than one stage, such as before transporting, during transferring, or after bringing the victims to places of harboring. Therefore, anyone who commits or participates in any of these acts in any form is considered either a principal perpetrator or an accomplice in this crime, depending on the circumstances. Second: Means of Material Behavior in Human Trafficking According to Article 1 of Law No. 91 of 2013, it details the acts constituting the means of committing the criminal behavior in human trafficking, generally using the term "coercion," which includes "...whether through the use of force, threat, or other forms of abduction, fraud, deception, or coercion, or exploitation of authority or influence, or exploitation of vulnerability, or by giving or receiving money or material benefits..." Despite the Kuwaiti legislation covering all means directed at the victim for exploitation, it is noted that the above text neglects the case of offering or receiving financial benefits to gain the consent of someone who has control over the victim for the purpose of exploitation. This is a crucial and significant means, especially concerning trafficking of children and women, as it often involves those who have control over them. This means is explicitly mentioned in the protocol concerning human trafficking. Regarding the other means constituting the material element, which the Kuwaiti legislator included under the term coercion, we clarify them briefly as follows: 1. Use of Force or Threats and Coercion: This includes verbal threats, even if legal actions like reporting on passports or illegal immigration, or physical violence such as beating, wounding, or restricting movement in any manner, to affect the victim’s will and render them unable to resist, thus compelling them to comply. 2. Abduction: This refers to "taking a person from their environment to another where they are hidden from those who have the right to protect them." The transfer can occur within the same country or across borders, regardless of the means used. 3. Fraud or Deception: This includes any action intended to mislead a person with false information to persuade them for the purposes of recruitment, transportation, harboring, or reception for exploitation. It is noted that the Kuwaiti legislator considers both fraud and deception as means of coercion. 4. Exploitation of Authority or Influence: This means using the advantages of authority or influence, whether legal, administrative, or de facto, official or unofficial, to commit human trafficking. There must be a causal relationship between this exploitation and the acts of recruitment, transportation, or harboring, to achieve the objective of human trafficking. 5. Exploitation of Vulnerability: This refers to exploiting the visible vulnerability of the victim, regardless of its nature, whether physical, health-related, psychological, emotional, mental, economic, social, or any other form that might lead the victim to accept exploitation. 6. Offering or Receiving Financial Benefits or Material Advantages for Exploitation: As previously noted, Article 1 does not specify who receives the financial benefits or material advantages, which implies that it might be the victims themselves, whereas, in practice, it is often through those who have control over them. Therefore, it is suggested to follow the protocol's wording: "Offering or receiving money or benefits to gain the consent of someone who has control over another person for the purpose of exploitation." Third: The Issue of Victim Consent and Its Impact on the Material Element of Human Trafficking The general principle in Kuwaiti criminal law is that the victim’s consent is a reason for justification, as stated in Article 39, which lists exceptions where consent cannot be considered a justification, including "...if the act is likely to cause death or serious harm or is classified as a crime regardless of the harm it may cause the victim, or if the law specifies that consent is not considered." This is reinforced by Article 2 of Law No. 91 of 2013, which states: "In all cases, the consent of the victim or their guardian to acts targeted for exploitation in these crimes is not recognized." Thus, the consent of the victim or their guardian is not a justification and is disregarded for the establishment of the material element of human trafficking. The crime is complete whether the victim is willing to be exploited or coerced into it, which is a commendable departure from the Kuwaiti Penal Code’s traditional principles, aligning with international legal standards that emphasize the protection of human dignity and the rejection of trafficking regardless of consent. However, a problem arises from reconciling Articles 1(4) and 2(7) of the same law, which presents a contradiction between two ideas: On one hand, coercion is considered an essential element of the material behavior of the crime, with the text stating: "Human trafficking is the recruitment, use, transportation, harboring, or reception of persons through coercion," detailing coercion as including "use of force, threat, or other forms of abduction, fraud, deception, coercion, exploitation of authority or influence, or exploitation of vulnerability, or offering or receiving financial benefits or material advantages..." This indicates that coercion is a necessary element in recruitment, use, transportation, harboring, or reception. The narrow interpretation of Article 1/4 implies that the material element cannot exist without coercion. However, coercion does not necessarily refer to exploitation in all its forms but is specifically linked to recruitment, transportation, harboring, or reception. On the other hand, the issue of not recognizing the victim's consent implies that sometimes the criminal behavior may not involve the means previously mentioned, with the perpetrator only engaging in recruitment or transportation without applying any form of coercion. This might occur in impoverished countries when the victim voluntarily approaches the perpetrator for relocation, especially if they believe any other place is better than their current situation, regardless of the motives. The notion of the crime's existence despite the victim’s acceptance contradicts the requirement of coercion as an element. Thus, it is suggested to abandon the term "coercion" as in the protocol, which avoids this contradiction. Third Requirement: The Mental Element of Human Trafficking in Kuwaiti Legislation In addition to the material element, the mental element must be established for the crime of human trafficking, which involves proving a causal link between the conduct and the result. This is achieved when the perpetrator's intention is directed towards committing the act that constitutes the crime and bringing about the result punishable by law, as stipulated in Article 41, paragraph 1. As this is an intentional crime by nature, the mental element requires both general criminal intent and specific criminal intent: 1. General Criminal Intent: General criminal intent for the crime is established when the perpetrator is aware of the elements of the crime of human trafficking and directs their will towards the conduct constituting the crime. General criminal intent consists of knowledge and will, meaning the perpetrator knows that the subject of the act is a human being and that trafficking them is legally prohibited, yet their will is aimed at achieving the unlawful result. 2. Specific Criminal Intent: Specific criminal intent is realized when the perpetrator aims to achieve the purpose of exploitation and the associated goals of dealing with individuals as stated in Article 1/4, which includes "...for the purpose of exploitation that includes exploiting others for prostitution or any form of sexual exploitation, forced labor or service, slavery, or practices similar to slavery, or organ removal." The term "for the purpose of" reflects the specific criminal intent, which must coincide with committing one of the forms of human trafficking. It is noted that Kuwaiti law does not address the specific criminal intent related to the perpetrator's aim to achieve personal gain from human trafficking, which ultimately results in financial profit. This is a gap that needs to be addressed. Chapter Three: Combating Human Trafficking in Kuwaiti Legislation First Requirement: Penalties for Human Trafficking According to Article 2 of Law No. 91 of 2013 on combating human trafficking, the Kuwaiti legislator has set out a range of penalties for those committing the crime of human trafficking. These penalties vary depending on whether the offender is an individual, a natural person, or a legal entity, and the law specifies aggravating circumstances. This is outlined as follows: 1. Penalties for Natural Persons: These include imprisonment and confiscation: - Primary Penalty: Imprisonment for 15 years. It is noteworthy that the legislator has explicitly defined the penalty, leaving no room for judicial discretion, unlike most legislations which set a minimum and maximum range for penalties for human trafficking. It is suggested that the term "imprisonment" is more appropriate than "custody," as "custody" typically refers to short-term deprivation of freedom, usually in misdemeanor cases, whereas "imprisonment" more accurately describes long-term deprivation of freedom, aligning with Article 3 of the Kuwaiti Penal Code. - Subsidiary Penalty (Confiscation): This is a mandatory consequence of the primary penalty, as per Article 67 of the Kuwaiti Penal Code. It involves the confiscation of money, goods, means of transportation, or tools obtained from or used in the commission of the crime, without prejudice to the rights of bona fide third parties, as clarified in Article 5 of the same law and Article 78 of the aforementioned Penal Code. Second: Penalties for Legal Entities Penalties for legal entities include both imprisonment and closure: 1.Primary Penalty: Imprisonment for 15 years applies to the legal representative and the actual manager of the legal entity if the crime was committed on behalf of or in the name of the legal entity with their knowledge. This imprisonment is imposed without prejudice to the personal criminal responsibility of the individual who committed the crime, in accordance with Article 5 mentioned earlier. 2. Subsidiary Penalty: Closure: In cases involving legal entities, Kuwaiti legislator, in Article 6 of Law No. 91/2013, has prescribed the dissolution of the legal entity and the closure of its headquarters and branches. This can be a permanent or temporary closure for not less than six months and not exceeding one year. It is suggested to remove the phrase "and not exceeding one year," as retaining it diminishes the intended impact of the closure. Since the judge has discretionary power to order temporary closure instead of permanent closure, it is better to leave the duration open-ended, with only a minimum limit imposed. Whether for natural or legal persons, the penalties for human trafficking do not affect any more severe penalties that may be stipulated by the Penal Code or any other law, according to Article 2 mentioned earlier. Attempted human trafficking is also punishable under the general provisions of the Kuwaiti Penal Code, particularly Articles 45 and 46. Third: Aggravating and Exempting Circumstances in Human Trafficking 1. Aggravating Circumstances: It should be noted that human trafficking does not consider mitigating circumstances, as stated by the Kuwaiti legislator in Article 13 of Law No. 91 of 2013, which considers it an exception to Article 83 of the Penal Code, affirming that mitigation or suspension of the sentence is not permissible. Conversely, the Kuwaiti legislator has intensified the penalty for human trafficking by increasing it if one or more of the aggravating circumstances specified in Article 2 are present: - First Case: The penalty may be increased to life imprisonment if the crime is committed under the following aggravating circumstances: - A: If committed by an organized criminal group, and the accused has contributed to its creation, organization, management, leadership, or joined it with knowledge of its purposes. - B: If the crime has an international character. - C: If the perpetrator is the spouse, a direct ancestor or descendant, or holds authority over the victim. - D: If committed by two or more persons, or by a person carrying a visible or concealed weapon. A formal observation is suggested to replace "two persons" with "two or more persons" to make the text comprehensive. - E: If the crime causes severe harm to the victim or results in permanent disability. - F: If the perpetrator is a public official in the country where the crime was committed, or where preparations for the crime were made, or where some effects occurred, and their position facilitated the commission or completion of the crime. - G: If the victim is a child or female, or a person with special needs. It is proposed to replace the term "female" with "woman" to denote an adult female, as "child" includes minor females. - Second Case: The penalty may be death if the crime results in the victim's death. 2. Exempting Circumstances: Article 10 of Law No. 91/2013 outlines the following exempting circumstances: - A: Before the Crime Commences: If the perpetrators report the crime to the competent authority before starting its execution, the judge is obligated to exempt them from punishment. -B: After the Crime is Committed and Before Investigation Begins: Reporting after the crime is committed, provided it occurs before the investigation starts by the authorities, where the exemption is subject to the judge's discretion due to the permissive nature of the text. - C: During the Investigation: If the perpetrator assists the authorities in arresting other offenders during the investigation, the exemption is also subject to the judge’s discretion. Second Requirement: Obstructing Justice in Human Trafficking This section examines cases where perpetrators or others attempt to obstruct justice, either by concealing the crime, resisting, or offering bribes, and the penalties prescribed for each case. First: Concealment of Human Trafficking Article 4 of Law No. 91 of 2013 addresses this issue, which includes: 1. Concealment of Perpetrators or Victims: Concealing one or more individuals who have committed or participated in the commission of a human trafficking crime, or who are victims, with the intention of evading justice or for any other purpose, is punishable by imprisonment for up to 5 years. It is permissible for the penalty to be waived if the concealed individual is a spouse, ancestor, descendant, or relative up to the fourth degree, provided that the accused is not the perpetrator or participant in the human trafficking crime. 2. Concealment of Crime Evidence: Concealing evidence of the crime is also punishable by imprisonment for up to 5 years. 3. Concealment or Disposal of Crime Proceeds: Concealing or disposing of items obtained from human trafficking is punishable by imprisonment for up to 3 years and/or a fine of between 1,000 and 3,000 Kuwaiti Dinars, or one of these penalties. 4. Failure to Report: Failing to report to the authorities despite knowing about a planned human trafficking crime is punishable by imprisonment for up to 3 years and/or a fine between 1,000 and 3,000 Kuwaiti Dinars. It is possible for the penalty to be waived if the person who failed to report is a spouse, ancestor, descendant, or a relative up to the fourth degree. Second: Using Force or Resistance Against Law Enforcement Kuwaiti legislation provides penalties for resisting or using force against law enforcement officials in the context of combating human trafficking, as detailed in Article 8 of Law No. 91 of 2013: 1. Use of Violence or Force: Anyone who assaults or resists law enforcement officials during their duties related to human trafficking is punishable by imprisonment for up to 5 years. 2. Causing Permanent Disability or Severe Injury: If the resistance or assault causes permanent disability or severe injury, or if the perpetrator is armed or a member of security forces, the penalty may be life imprisonment or a fixed term exceeding 15 years. 3. Causing Death: If the assault or resistance results in death, the penalty is death. Third: Using Force, Threats, Bribes, or Promises Kuwaiti legislation also criminalizes the use of force, threats, or bribes to induce someone to give false testimony, provide incorrect information, or obstruct justice. According to Article 9, anyone who uses force, threats, or offers bribes or promises to influence testimony or information given to investigators or the court is punishable by imprisonment for up to 5 years, subject to the court's discretion. **Section 3: Protection of Victims of Human Trafficking under Kuwaiti Legislation** State officials responsible for law enforcement have a clear humanitarian and legal duty to treat victims of human trafficking in accordance with their basic human rights, with a primary focus on their safety and security. The significance of victims is heightened by their frequent role as witnesses. Victims often wish to turn to authorities for several reasons identified by the United Nations, including: - Fear of retaliation from traffickers - Trauma, shame, and fear of being ostracized by their families and communities upon return to their home countries - Hope for another escape and a better life - Lack of trust and insufficient information about available assistance, particularly from non-governmental organizations Given these concerns, the state is obligated to provide protection and assistance to victims of human trafficking, regardless of whether they are witnesses or not. This protection is expected to include: - Protection of the victim's personal privacy and identity - Ensuring the physical and psychological safety of the victims - Protection from unfair treatment The United Nations has outlined the role of the public prosecution in protecting victims, particularly witness victims, with detailed guarantees. However, when applying this to Kuwaiti legislation, it is noted that it only addresses some of the powers available to the public prosecution in taking necessary measures to protect victims of human trafficking. This includes: - Referring victims to medical or social welfare agencies as needed - Placing them in state-designated shelters until they can be returned to their home country or the country where the trafficking occurred This situation indicates the need for legislative intervention to review and possibly enhance these provisions. **Conclusion:** In summary, human trafficking is one of the gravest violations of human rights, if not the most severe, as it profoundly undermines and degrades human dignity. This crime is characterized by its danger and lack of legal oversight, involving two parties governed by inequality, which places victims in a vulnerable position, exposed to various types of crimes and violations simultaneously. With the rapid changes driven by globalization, openness, and acceptance of differences, some phenomena have become familiar and part of everyday life, while they actually represent improved forms of human trafficking. We might unknowingly contribute to these forms within our communities without fully grasping their danger or true nature. In response, international efforts have been directed towards enacting both specific and general legislation to combat human trafficking. As these laws evolve, so do criminal tactics, continually devising new ways to evade legal provisions and exploit this unique commodity created by God for substantial profits on both local and international levels. Thus, the fight against human trafficking has evolved from permissiveness and regulation to criminalization and imposing severe penalties on offenders, with unified national and international efforts to combat this crime and subject perpetrators to the harshest penalties. However, neither the United Nations' efforts nor the efforts of global legislators are sufficient to tackle this issue without a corresponding awareness of our behaviors and the various forms of human trafficking, especially the newer ones. It is crucial to highlight the role that schools, universities, and educational institutions, as well as civil society organizations, should play in this regard, whether in Kuwait or any other country worldwide. **References** **In Arabic:** 1. **Books:** - Ibrahim Al-Saket, "Human Trafficking: Concept and Evolution," published by the Human Trafficking Unit, Jordan, no date. - Ibn Manzur, Jamal al-Din Muhammad bin Makram, "Lisan al-Arab," Volume 4, Dar Sader, Beirut, 1990. - Ahmad Fathi Sorour, "The Mediator in Criminal Law – Special Section," 4th edition, Dar Al-Nahda Al-Arabiya, Cairo, 1991. - Ahmad Shawki Abu Khatwa, "Explanation of General Principles of Criminal Law," Dar Al-Nahda Al-Arabiya, Cairo, 1999. - Akram Omar Daham, "The Crime of Human Trafficking," Dar Al-Kutub Al-Qanuniya, Egypt, 1st edition, 2011. - Al-Shammari Mahdi Muhammad, "International Efforts to Combat Human Trafficking," paper presented at the Human Trafficking Conference, Ministry of Interior, Abu Dhabi, May 24-25, 2004. - Amira Osman Idris, "International Efforts to Combat Human Trafficking," Migration Horizons Magazine, Sudan Center for Migration Studies, Development and Population, Issue 4, February 2011. - Hamoudi Ahmed, "The Legal System for Human Trafficking," Master's thesis in Criminal Law, Faculty of Law, University of Algiers 3, 2014-2015. - Khaled Mustafa Fahmy, "The Legal System for Combating Human Trafficking Crimes," Dar Al-Fikr Al-Jami'i, Alexandria, 1st edition, 2011. - Reda Abdel Ghaffar Mansour, "Globalization and Money Laundering," Master's thesis, Faculty of Law, Tanta University, 2009. - Suzy Ali Nashid, "Human Trafficking between the Hidden Economy and the Formal Economy," New Academic Publishing House, Alexandria, 1st edition, 2005. - Ali Muhammad Saleh Al-Dabas, Ali Alyan Muhammad Abu Zaid, "Human Rights and Freedoms and the Role of the Legitimacy of Police Procedures in Promoting Them," Dar Al-Thaqafa for Publishing and Distribution, Amman, 2002. - Issa bin Buraim, "Human Rights and Freedoms – A Comparison between Text and Reality," Dar Al-Manhal for Publishing, Beirut, Lebanon, 2011. - Samar Ibrahim Muhammad, "Trafficking in Women: A Legal Perspective," Political Horizons, Arab Center for Research and Studies, Issue 8, August 2014. - Taher Mustafa, "Overview of the Federal Law on Human Trafficking," 1st edition, General Police Headquarters, Abu Dhabi, 2008. - Mustafa Mohaghegh Damad, "Fundamental Rights between Islam and Civil Society," Dar Al-Hadi for Printing, Publishing, and Distribution, Beirut, 1st edition, 2001. - Muhammad Ali Al-Arian, "Human Trafficking Operations and Mechanisms for Combating Them," New University House, 1st edition, 2011. - Fatiha Muhammad Qorari, "Criminal Response to Human Trafficking Crimes – A Study of UAE and Comparative Law," Sharia and Law Journal, Faculty of Sharia and Law, United Arab Emirates University, Volume 23, Issue 4, 2009. - Hani Al-Sebki, "Human Trafficking Operations," Dar Al-Fikr Al-Jami'i, Alexandria, 1st edition, 2010. - William Najib and George Nassar, "Concept of Crimes against Humanity," Arab Studies Center, 1st edition, 2001. 2. **Reports and Specialized Publications:** - David Weissbrodt and the International Anti-Slavery Association, "Abolition of Slavery and Its Contemporary Forms," published by the United Nations Human Rights Commission, Geneva, 2002. - "Guidelines for Protecting Egyptian Workers Abroad from Human Trafficking," published by the National Coordinating Committee for Combating and Preventing Human Trafficking, Arab Republic of Egypt, 2012. - Report of the Working Group on Contemporary Forms of Slavery, United Nations, 23rd session, paragraph 22, 1998. - "Toolkit for Combating Human Trafficking," published by the United Nations as part of the Global Programme against Human Trafficking, p. 14, available on the official UN website. - Report of the United Nations High Commissioner for Human Rights presented to the Economic and Social Council, 2002. 3. Legal Texts: - Law No. 16 of 1960, amended by Law No. 31 of 1970, including the Kuwaiti Penal Code. - Law No. 91 of 2013 concerning the Combat of Human Trafficking and Migrant Smuggling. In English: 1. Books: - [Pending entries] -Locations -William Wilson, criminal-law, doctrine and theory,pearson education, second edition,2003. -www.un.org/documents -www.achpr.org -www.africa-union.org/child/ -www.oas.org -www.umn.edu -www.int/traffiking