Before the commencement of talks in the current peace process, the LTTE insisted that the Sri Lankan government remove its legal ban against them. Although the proscription of the LTTE did not have any tangible impact on the organisation, the LTTE wanted the ban removed because both parties should perceive themselves, and be perceived by others, as equals. The LTTE viewed the de-proscription as a visible sign of power symmetry between the two. The government has historically fought any recognition of equal status vigorously, but taking into consideration the military reality on the ground, its economic capacity and the arguments of the international community, the Sri Lankan government removed the ban before the commencement of talks.
Despite the fact that ban had been removed, the peace process was ongoing and the ceasefire in effect, the US government invited only the Sri Lankan government to attend the Washington donor conference of April 2003 that was meant to address post-conflict resettlement, rehabilitation and development. The LTTE, which was governing 70 per cent of the north east, the area mostly affected by the war, was not invited. The Sri Lankan government characterised this conference as a preparatory seminar for the main Tokyo donor conference in June that year. The LTTE was upset and pointed out that the Sri Lankan government's attendance in Washington was a breach of the parties' commitment to seek developmental aid as joint partners. The US government's rationale for not inviting the LTTE was not that the conference was limited to state representatives, but that the US anti-terrorism statute did not permit LTTE members to enter the US, because of their designation as a foreign terrorist organisation. Yet if that were the case, the conference could have been held in a country without such a list.
The whole exercise was viewed by the LTTE as an attempt to destroy the power symmetry between the protagonists and added to growing mistrust between the Sri Lankan state and the LTTE. The LTTE's exclusion contributed to their dismay at the lack of progress in negotiations and the Sri Lankan government's failure to implement its obligations under the Memorandum of Understanding signed almost a year before. On 21 April 2003 the LTTE suspended its participation in the talks and decided to boycott the Tokyo conference. The LTTE's chief negotiator and political strategist Dr. Anton Balasingham observed, "As a non-state actor caught up in the intrigue-ridden network of the international state system, the LTTE was compelled to act to free itself from the overpowering forces of containment". By failing to engage with non-state entities, third-party states were also lessening their ability to persuade or become fair arbitrators of the conflict.
Anti-terrorism legislation is another example of how artificial and unhelpful asymmetry is created between states and non-state actors pursuing legitimate armed struggles. Anti-terrorism statutes address terrorist acts by foreign non-state actors, but not by state actors. Yet there is no moral or legal reason for state terrorism to be immune from any anti-terrorism statute. The provisions of the Additional Protocol I and II of the Geneva Conventions refer to the "party" to the conflict, not the state in conflict, and thus cover conduct of both state and non-state actors. Thus the rationale for limiting anti-terrorist legislation to non-state actors only is flawed. The unreasonableness of the anti-terrorism statute is demonstrated by the case of Sri Lankan government whose armed actions against the Tamils resulted in the mass murder of Tamils and their burial in mass graves. According to the UN Human Rights Commission, in the period from 1980 to 2000 Sri Lanka was second only to Saddam Hussein's regime in the number of outstanding cases of disappearances. Yet the officers of the Sri Lankan military establishment were able to come to Hawaii where the US Pacific Command is situated, whereas the LTTE's political and economic advisers were unable to enter the US as 'members' of a 'foreign terrorist organisation'.
As an attorney who was involved in the legal challenges to the designation and/or characterisation of the LTTE as a terrorist organisation in the USA and in Canada I was privy to the unclassified information in those legal proceedings. I was appalled to see that the designation or characterisation was primarily based on intelligence reports from the country in which these groups operate and from reports by academics of one of the protagonist nations claiming to be objective experts. Since the intelligence agencies are part of the conflict with the non-state entities in those countries, it cannot be expected that those agencies will provide unbiased information. However, other states uncritically accept the host government's demonisation of an armed group when it suits their own geopolitical interests, and often possibly for the sake of courtesy. The above illustrates the asymmetry inherent in the international community that influences its legal systems.