Commentary — When hijacked passenger aircraft struck New York’s World Trade Center and the Pentagon on September 11, 2001, Tonga was thousands of kilometres away from the devastation.
But the consequences of 9/11 eventually reached the Kingdom’s own statute books.
Within little more than a year, Tonga had made terrorism a specific criminal offence, begun expanding its participation in international counter-terrorism treaties and committed itself to greater international cooperation against terrorism.
It was part of an extraordinary global security transformation triggered by attacks in the United States that killed nearly 3,000 people.
The UN response reached Tonga
Just 17 days after the attacks, the United Nations Security Council adopted Resolution 1373 on September 28, 2001.
The resolution imposed wide-ranging counter-terrorism obligations on UN member states, including requirements relating to terrorist financing, criminal law, international cooperation and bringing those involved in terrorism to justice.
Tonga was therefore required, like countries around the world, to examine whether its domestic laws were adequate for this new international security environment.
Its response provides an important example of how an event on the other side of the world could produce concrete legal changes in a small Pacific kingdom.
In a report submitted to the UN Counter-Terrorism Committee in December 2002, Tonga said it was “fully committed” to cooperating with the United Nations and other states in combating international terrorism.
More importantly, Tonga revealed that it had made a policy decision to deal with terrorist offences through its general criminal law.
Terrorism entered Tongan criminal law
The Criminal Offences (Amendment) Bill 2002 was introduced and passed by Tonga’s Legislative Assembly in October that year.
The amendment created terrorism as a specific offence under Tonga’s Criminal Offences Act.
It also defined what constituted an “act of terrorism” and “terrorist property” and provided additional penalties relating to such property.
This represented a significant development.
Before the global security response to 9/11, Tonga already had laws that could deal with various underlying crimes that might be associated with terrorism — including offences involving violence, weapons, money laundering, extradition and international criminal cooperation.
But terrorism itself was now being explicitly recognised within Tongan criminal law.
A terrorist attack in New York and Washington had therefore contributed to changing what constituted a specific criminal offence in Tonga.
Tonga joined the international response
The legal change was only one part of Tonga’s response.
Tonga told the United Nations that at the time it was already party to three of the 12 principal multilateral treaties associated with the international campaign against terrorism.
Then, on November 1, 2002, Tonga’s Privy Council approved the Kingdom becoming party to the remaining nine.
The Government subsequently began the formal process necessary to join them.
Tonga also said it had offered political support and, within the limitations of being a small island developing state, assistance through intelligence cooperation.
The response therefore extended beyond simply passing another law.
Tonga was becoming part of an increasingly interconnected international security system in which terrorism, terrorist financing, intelligence, border security and serious transnational crime could no longer be treated solely as domestic matters.
Existing laws became part of the security architecture
Tonga did not begin from nothing.
Its 2002 report identified a range of existing legislation relevant to meeting its new international obligations, including laws governing money laundering and proceeds of crime, extradition, mutual assistance in criminal matters, immigration, passports, arms and ammunition and shipping.
Government agencies also had roles in the new framework, including Police, Finance, the National Reserve Bank of Tonga and other authorities.
What changed after 9/11 was the context in which these different powers increasingly operated.
An immigration issue could also be a security issue. A suspicious financial transaction could potentially involve terrorist financing. Extradition and international criminal cooperation became parts of a much larger global counter-terrorism network.
For Tonga, as elsewhere, national security was becoming increasingly transnational.
The legal response continued
The 2002 amendment was not the end of Tonga’s development of counter-terrorism law.
In 2013, Tonga enacted the Counter Terrorism and Transnational Organised Crime Act, creating a much more comprehensive statutory framework dealing with terrorism alongside transnational organised crime.
The Act remains part of Tonga’s current legislation.
It would be too simplistic to say that every subsequent counter-terrorism measure Tonga adopted was caused solely by September 11.
International security threats continued to evolve, as did international legal standards and concerns about organised crime and terrorist financing.
But the historical chain immediately following 9/11 is unusually clear.
The attacks occurred on September 11, 2001.
The Security Council responded with Resolution 1373 on September 28.
Tonga subsequently reviewed its obligations, amended its criminal law in October 2002, approved participation in additional international counter-terrorism treaties the following month and reported those measures to the UN in December.
