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In U.S. policy, when are military personnel not combatants?

This question is inspired by a comment that jpmc26 left on my answer here. The comment says:

I'm not sure "noncombatant targets" categorically excludes military. Are you sure it can't include soldiers who are [not] located in a combat area? E.g., the Ft. Hood shooting was committed against soldiers who were nowhere near a combat zone and were not prepared for combat. Or am I misunderstanding what you meant?

indigochild
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  • Whoops. My comment should've said "are not located in a combat area." Mind putting a "[not]" correction in your quote? – jpmc26 Oct 03 '17 at 23:29
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    @jpmc26 Done deal. – indigochild Oct 03 '17 at 23:30
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    I am pretty sure medical personnel and wounded soldiers at their care count as non-combatant, provided they are following the proper regulations (identified, not transporting weapons/tropos, etc.) – SJuan76 Oct 04 '17 at 07:16
  • I remember a class in boot camp where I learned that paratroopers in the air are non-combatants, I think medics as well, they used to not get combat pay – Frank Cedeno Oct 04 '17 at 15:30
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    @FrankCedeno You may have been told that paratroopers are noncombatants, but the normal rule is actually that people bailing out of a plane are protected unless they’re paratroopers (the logic is that aircrew bailing out of a downed plane are out of the fight like sailors in a life raft, while paratroopers are jumping as part of their deployment into combat). – cpast Apr 24 '18 at 13:19
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    @FrankCedeno: Actually no. People who jump from a plane because their plane was shot out of the sky are no longer combatants until they land. Paratroopers can be shot at while still in the sky. In fact, the U.S. military do issue two different colored parachutes depending on your jump status. Non-Paratroopers get white parachutes (Surrender color... plus very visible to SAR operations.) where as Paratroopers get colors based on mission need. – hszmv Apr 24 '18 at 20:29

2 Answers2

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Customary international humanitarian law has 2 cases of miltary non-combatants:

Rule 3. All members of the armed forces of a party to the conflict are combatants, except medical and religious personnel.

Source: IHL Databases

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    I am fairly sure that international humanitarian law treats injured soldiers who are receiving treatment as non-combatants, and certainly, at a minimum, differently from ordinary combatants. Also, the definition above actually contains a third exception on its face: members of the armed forces of a nation that is not a party to the conflict. International humanitarian law really has no application outside the context of active conflicts such as the Fort Hood shooting. – ohwilleke Apr 24 '18 at 16:23
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    The source cited notes . . . "there can be other non-combatant members of the armed forces . . . Germany . . . “persons who are members of the armed forces but do not have any combat mission, such as judges, government officials and blue-collar workers, are non-combatants”. The US Naval Handbook . . . “civil defense personnel and members of the armed forces who have acquired civil defense status” are non-combatants." – ohwilleke Apr 24 '18 at 16:28
  • What does it mean to be party to a conflict? When I was in school studying IR, we learned examples where military personnel are generally noncombatants, such as shipwrecked sailors and (as ohwilleke notes) injured ones receiving treatment. This seems like a good start, there is just some more detail I think. – indigochild Apr 24 '18 at 23:47
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As Bishop stated:

Customary international humanitarian law has 2 cases of miltary non-combatants:

Rule 3. All members of the armed forces of a party to the conflict are combatants, except medical and religious personnel.

Source: IHL Databases

"Party to the conflict" is the important part of this. In your example, the Fort Hood shooting, there was no "armed conflict" that the military personnel involved were party to as far as the definition under international law goes.

From that link (emphasis mine):

Non-international armed conflicts, according to common article 3 of the Geneva Convention, are ‘armed conflicts that are non-international in nature occurring in one of the High contracting parties’ (Geneva Convention, common article 3, 1949). This means that one of the parties involved is nongovernmental in nature. However, common article 3 also states that it does not apply to other forms of violence such as riots, isolated and sporadic acts of violence.

Which invalidates the Fort Hood shooting as an armed conflict, it being an isolated act of violence, and thus the military personnel involved were not combatants.

So to answer your question, military personnel are not combatants when they are not actively engaged in an "armed conflict" as defined above. This, however, does not make them invalid targets for an enemy to attack under international law. Military personnel are legitimate military targets under international law unless they are Hors de Combat (emphasis mine, relevant to comments)

Protocol I to the Geneva Conventions defines:

A person is "hors de combat" if:

(a) he is in the power of an adverse Party;

(b) he clearly expresses an intention to surrender; or

(c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself;

provided that in any of these cases he abstains from any hostile act and does not attempt to escape.

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Gramatik
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    "In your example, the Fort Hood shooting, there was no "armed conflict" that the military personnel involved were party" But the US was involved in armed conflict in Iraq and Afghanistan. So would the people at Fort Hood have been legitimate targets if the shooter had been a member of the Taliban? – Acccumulation May 29 '19 at 15:04