Armenia is rearming. Following the catastrophic losses of the 2020 Nagorno-Karabakh War and the complete collapse of Russian reliability as a security guarantor, Yerevan has undertaken one of the most consequential military modernization programs in its post-independence history. The centerpiece of that effort is a procurement relationship with India, covering Pinaka 214mm multiple-launch rocket systems, Akash-1S surface-to-air missiles (with the next-generation Akash-NG on order), ATAGS 155mm towed howitzers, ZADS counter-drone systems, Swathi counter-battery radars, and Konkurs anti-tank missiles. By 2022-2024, India had become the source of 43 percent of Armenia’s total weapons imports. Armenia is now India’s largest single arms export customer by value.
Has Armenia complied with its obligation, under Article 36 of Additional Protocol I (AP I), to review these weapons before acquiring them? That question exposes an underappreciated doctrinal problem about who bears the Article 36 obligation when weapons cross borders: the manufacturer, the buyer, or both, and under what conditions. It also requires examining whether the weapons Armenia has acquired are “new” within the meaning of the provision, a question with a less obvious answer than it might seem. And most structurally, Armenia’s situation is paradigmatic of a large class of AP I States Parties for whom Article 36 exists in theory but has never been operationalized in practice.
The Obligation
Article 36 of AP I, to which Armenia has been a party since 2007, provides:
In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.
The text is notably broad. It does not confine the obligation to weapons developed by the State Party itself. It reaches any “acquisition,” the operative term for Armenia’s situation as a buyer rather than a developer. An International Committee of the Red Cross (ICRC) commentary confirms that “acquisition” was deliberately included to capture exactly this scenario: a State that procures from abroad must conduct its own legal review before or upon incorporation of the weapon into its arsenal (para. 1469). The obligation is independent, non-transferable, and does not evaporate because another State may have conducted its own legal assessment before export approval.
Article 36 addresses only High Contracting Parties and their own weapons decisions. This creates a threshold question: does India bear an Article 36 obligation in respect of its exports to Armenia, does Armenia bear it in respect of its acquisitions, or do both? Both bear independent obligations, but with different content, and the distinction matters.
The legal question Article 36 poses is always relational: not whether this weapon is lawful in the abstract, but whether this State’s employment of it would be. The drafting history of Article 36 indicates that it was crafted with arms-producing States in mind. In that context, review integrates naturally into the procurement cycle: legal assessment accompanies development, and the same entity that makes the weapon decides whether it is lawful. The contemporary arms trade is dominated by a division between States that develop and sell on the one hand, and States that buy and use, on the other. For purchasing States, which constitute the large majority of AP I’s 174 States Parties, Article 36 asks for something their procurement architecture was never designed to provide.
The applicable rules bind Armenia, including its treaty commitments, its customary obligations, its rules of engagement, and the factual circumstances of its likely use. An Indian review, conducted against Indian doctrine, Indian treaty exposure, and Indian operational parameters, addresses none of this. The two obligations share a common framework, the substantive rules of international humanitarian law (IHL), but their content diverges at the point that matters most.
There is a further dimension. India is not a party to AP I. Its obligations arise, if at all, from customary international law, and the customary status of Article 36 remains contested (skeptical: here, p. 94; here, p. 285; contrary view, p. 342-43). Armenia, by contrast, is unambiguously bound by AP I as a treaty party. Armenia’s obligation is therefore more secure legally than India’s, not less.
While no formal Article 36 review mechanism has ever been publicly documented in Armenia, this is not unusual. ICRC guidance on Article 36 implementation identified fewer than twenty States worldwide that had established formal review procedures; they were predominantly NATO members and a handful of other active arms-producing nations.
This structural gap does not dissolve the obligation. But it does explain why the obligation goes systematically unmet. The ICRC has long recognized this and offered technical assistance to States seeking to develop Article 36 review procedures. A 2006 ICRC Guide, updated in 2016, provides a workable template that is not contingent on having a domestic arms industry: an interagency body drawing on the Ministry of Defense legal directorate, the Ministry of Foreign Affairs, and external expert input. Several small States with no arms production have adopted variants of this model. Armenia has not.
There is also a role for supplier States, though it does not substitute for the buyer’s independent obligation. India could, as a matter of export policy, require recipient States to document Article 36 compliance as a condition of sale, or provide its own review documentation to facilitate the buyer’s assessment. Whether India does so is not publicly known. The SIPRI Arms Transfers Database records the flow of weapons but not the legal reviews, or their absence, that accompany them. The international community tracks what weapons go where with considerable precision, while remaining entirely blind to whether the legal obligations governing those weapons’ acquisition are being met.
Are These “New” Weapons?
Article 36 does not define “new weapon.” If read relationally, the term encompasses any weapon newly entering a State’s arsenal, regardless of how long other States have fielded it. In that sense, Armenia’s acquisition of the Pinaka system is an acquisition of a new weapon, regardless of India’s decades of operational experience with it. This interpretation aligns naturally with the text, “acquisition” is used without qualification, and with the purpose of Article 36, which is to ensure that every State Party takes responsibility for the weapons it employs, not merely those it invents.
If read as requiring novelty, as State practice has tended to suggest by concentrating review resources on technologically novel systems, the obligation is triggered only where genuinely novel legal questions arise that existing IHL does not clearly resolve. On this reading, a 155mm howitzer acquired today does not trigger Article 36 because artillery has been governed by settled IHL principles and rules for over a century. Yet this approach creates a serious accountability gap: “conventional” weapon types can raise entirely unconventional legal questions when combined with new delivery platforms, new targeting technologies, or new operational doctrines specific to the acquiring State’s context. The Article 36 review is precisely the mechanism for catching those combinations.
For instance, Akash-NG is India’s next-generation surface-to-air missile system, currently in development. Armenia is among the first prospective foreign operators of a platform whose full capabilities and effects have not yet been publicly established.
What a Sufficient Review Would Require
Article 36 does not prescribe a procedural template, but the substantive questions a legally adequate review must address are not difficult to identify. Article 36 requires, at a minimum, a genuine legal assessment, conducted in good faith by a competent authority, examining the weapon against the applicable rules of IHL and any other relevant rules of international law in the context of the acquiring State’s anticipated employment. This is a due diligence standard. The State must turn its mind to the question, bring appropriate legal expertise to bear, and reach a reasoned determination. Acquiring weapons without legal assessment, or treating the question as answered by default, falls short regardless of whether the weapons turn out to be lawful.
Applied to Armenia, the answers are less comfortable. The most straightforward questions concern superfluous injury and unnecessary suffering under Article 35(2). None of the systems Armenia has acquired appears designed to cause effects exceeding military necessity, but that conclusion must be reached through documented legal assessment, not merely assumed. Harder questions arise under the principles of distinction and the prohibition on indiscriminate weapons. The Pinaka raises a related but distinct set of questions. Area-effect weapons are not inherently unlawful, but their use in circumstances where distinction cannot be exercised is prohibited, and review should establish what operational constraints that entails for Armenia’s specific geographic and tactical context, a question that becomes more acute the closer one looks at Armenia’s border terrain.
Treaty exposure shapes the legal framework within which these questions are answered. Armenia is neither a party to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, nor to the Convention on Cluster Munitions. India is likewise outside both instruments. That non-party status means Armenia is not prohibited from acquiring systems that incorporate submunition technology. But it does not mean those systems escape legal scrutiny; it means the scrutiny runs through AP I. Whatever munitions Armenia acquires and however it employs them, the obligations of distinction (arts. 48, 51(4)(b)), proportionality (art. 51(5)(b)), precautions in attack (art. 57), and the prohibition on indiscriminate weapons (art. 51(4)) apply in full. Article 36 is precisely the mechanism that links this procedural obligation to that substantive one: the review must determine whether the weapon, as Armenia intends to use it, would comply with those rules. The absence of a treaty prohibition on acquisition makes the Article 36 review more important, not less.
All of this analysis, however, must ultimately be conducted not in the abstract but against the specific circumstances of Armenia’s anticipated employment, including the theaters of likely conflict, adversary countermeasures, terrain, and applicable rules of engagement. This is the deepest reason why a review by the purchasing State cannot be outsourced to the seller. India’s review, if any, was conducted against different strategic and operational parameters. Armenia’s review must answer Armenia’s question. No one else can.
Concluding Thoughts
Armenia’s obligations under Article 36 were triggered when it entered into its first Indian defense contract. The absence of any publicly documented review process is not a minor procedural deficiency. It is a gap in the State’s compliance with a treaty obligation that goes to the heart of how wars are fought and, in Armenia’s case, may soon need to be fought again.
The buyer-State problem is a systemic feature of the Article 36 regime, and Armenia is a notable instance. But that systemic framing should not obscure the individual legal responsibility at stake. Article 36 does not ask whether a State has the institutional infrastructure to conduct a review. It asks whether the State has determined that its weapons are lawful. The obligation existed before the infrastructure did, and it continues in its absence.
A State that has recently experienced the consequences of operating under-equipped and under-prepared, legally as much as militarily, has particular reason to take seriously an obligation designed to ensure that its new weapons are not only effective, but lawful. The capacity to do so exists. The legal expertise is present. What is missing is the institutional decision to treat Article 36 not as an abstract treaty commitment, but as a practical requirement of responsible rearmament.
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Davit Khachatryan is an international law expert and researcher with a focus on operational law, international criminal law, alternative dispute resolution, and the intersection of various legal disciplines.
The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
https://lieber.westpoint.edu/armenias-military-procurement-india-article-36-additional-protocol-i/
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