Case Western Reserve Journal of International Law 52 (2020) Crime as Cognitive Constraint admissibility thresholds might be hard to overcome). 201 Rather, the advantage of such an amendment lies in its normative potential. 202 It could form authoritative basis to push for criminal prosecution of corporations in national courts, obviating the lengthy norm-making process required by customary international law. 203 Ironically, such purpose recalls the lack of state practice and clear customary norm expressed during the Rome Statute negotiations as basis for excluding corporate criminal liability in the Rome Statute. The new draft of the Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises (“draft BHR treaty”) similarly attempts to crystallize criminal prosecution of corporations for serious international crimes, but domestically. Articles 6 and 7(a) require states to enable domestic prosecution of corporations – without prejudice to the domestic prosecution of individuals – for crimes within the jurisdiction of the Rome Statute. 204 Importantly, it avoids the approach of the draft 2003 Norms by putting back the onus on states to regulate businesses domiciled within their territory. 205 Unlike the proposal to amend the Rome Statute to prosecute juridical persons,206 the draft BHR treaty formally relies on national systems to criminalize and punish, not on an international mechanism. 207 Corporate criminal liability has been viewed as a necessary step to close the accountability gap. 208 To be fair, Article 6(7) of the draft BHR 201. See Marie Davoise, All Roads Lead to Rome: Strengthening Domestic Prosecutions of Businesses through the Inclusion of Corporate Liability (July 25, 2019), in the Rome Statute, OPINIO JURIS https://opiniojuris.org/2019/07/25/all-roads-lead-to-rome-strengtheningdomestic-prosecutions-of-businesses-through-the-inclusion-of-corporateliability-in-the-rome-statute/ [https://perma.cc/5RU2-YFJ6]. 202. See id. 203. Id. 204. See Carlos Lopez, The Revised Draft of a Treaty on Business and Human Rights: A Big Leap Forward, OPINIO JURIS (Aug. 15, 2019), https://opiniojuris.org/2019/08/15/the-revised-draft-of-a-treaty-onbusiness-and-human-rights-a-big-leap-forward/ [https://perma.cc/3LL8VSGC]. 205. Id. 206. Scheffer, supra note 196 at 38-39. 207. Lopez, supra note 206. 208. CORPORATE COMPLICITY REPORT, supra note 194, at 56 (opining that “[rejection of criminal prosecution of corporations in the Rome Statute] should not preclude the States Parties to the ICC Statute from including a provision for corporate criminal responsibility in the future”). See also Joanna Kyriakakis, Prosecuting Corporations for International Crimes: The Role for Domestic Criminal Law, INTERNATIONAL CRIMINAL LAW AND PHILOSOPHY 108, 136-37 (Larry May & Zachary Hoskins eds., 2009). 177