Abstract
Recent armed conflicts present a paradox. Military officials routinely claim that conflicts, such as the recent war against ISIS in Iraq and Syria, are the most precise in history. Yet thousands of civilians continue to be killed. This Article shows the reason so many civilians continue to be killed is that the law we have was never designed for modern warfare, in which states are heavily reliant on air power, and enemy combatants are not generally separate or readily distinguishable from civilians. This truth about the limits of the legal protections codified nearly fifty years ago in the Additional Protocols to the Geneva Conventions was explicitly and repeatedly recognized at the Protocols’ negotiating conference. Yet states have effectively blinded themselves to these limits and continue to apply the law as if it were adequate to the conditions in which we fight. This article seeks to remedy the legal blindness by asking - and answering - how the law should be constructed if we want to protect civilians, and do so while serving our strategic interests in eliminating enemy threats and establishing durable security.