Case Western Reserve Journal of International Law 52 (2020) Crime as Cognitive Constraint person’s dignity. 293 International criminal jurisprudence on incitement similarly betrays this difficulty in their unclear and inconsistent application of evidentiary standards and causation analyses in prosecuting speakers. 294 Challenges in this area can be partly resolved depending on the structure of the tort liability adopted. For instance, if strict liability is adopted, then the problem of identifying non-users affected by speech on the platform is reduced. In any case, tort law has a looser causation requirement than criminal law. C. Design An international mechanism can provide a cohesive conceptual template to assess corporate wrongdoing. For Steinitz, an ICCJ can play a “universalizing and harmonizing role.” 295 The definition of transnational corporate activity under the draft BHR treaty can be adopted. Under article 1(3), business activities refer to “any economic activity of transnational corporations and other business enterprises, including but not limited to productive or commercial activity, undertaken by a natural or legal person, including activities undertaken by electronic means.” There is merit in using this definition for an international tort liability considering the increasing number of corporations that are not characterized by the traditional triggers of market entry into a host state. 296 To bring about an ICCJ, Steinitz proposes the adoption of either one of two treaties: one treaty modeled after the Rome Statute creating the ICCJ (“ICCJ Statute”), and another treaty modeled after the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“ICCJ enforcement treaty”). 297 These treaties involve a separate membership system: 293. See JEREMY WALDRON, THE HARM IN HATE SPEECH 5 (Harvard University Press 2012). 294. See INCITEMENT ON TRIAL, supra note 128, at 8 (Cambridge University Press, 2017); GORDON, supra note 28, at 388; See also Domino, supra note 284 (explaining how this problem of identifying rightsholders or non-users affected by content moderation will similarly besiege the design of operational-level grievance mechanisms in the platform context). 295. Steinitz, supra note 240, at 159. 296. But see Sebastian Smart, Draft Treaty on Business and Human Rights: A Digital Environment Perspective (Aug. 14, 2019) (discussing the this definition), problem of https://www.cambridge.org/core/blog/2019/08/14/draft-treaty-onbusiness-and-human-rights-a-digital-environment-perspective/ [https://perma.cc/HKD7-PEF7]. 297. See Steinitz, supra note 240, at 145. 194