Is the Genocide Denial Act legal?

Answer

Your question is actually about the Constitution. It contains the fundamental rights of all Belgians, including the right to protection of freedom of expression. In theory, anyone can say what he or she wants, as long as no harm is done to anyone. However, there are situations in which a Law may deviate from the Constitution, for example to prevent someone from inciting hatred or discrimination. Which situations qualify for this is a difficult question. In practice, it is mainly the European Court of Human Rights that determines the guidelines within which Belgium can impose restrictions. Our country is a party to the European Convention on Human Rights, which should be read together with the Constitution, and also to the UN International Covenant on Civil and Political Rights. There is a consensus that racist expressions are punishable, or more generally anything that gives rise to targeting people because of factors that are part of their identity (belief, gender, orientation, skin colour…).

Simply put: Treaties and Constitution protect your right to say what you want. But there are exceptions. Normally, the judge views those exceptions (in which the state is allowed to act against you because you express an opinion) in a very restrictive way. After all, a free public debate is the basis of our democracy.

As for specific laws about the past, the discussion is very complicated. No one has a problem with a law that criminalizes denial of the Shoah. The question is, however, to what extent this can be extended to more general categories. Inciting genocide today or in the future is an international crime, without a doubt. Nobody wants to experience Rwanda, Yugoslavia… in the future. Digging open the past, that’s something else. In France there is a storm of protest among lawyers and historians about the ‘lois mémorielles’, or the laws with which the legislator wants to record the memory of a country, among other things by introducing criminal taboos. Ultimately, this leads to situations where the historical ‘truth’ is fixed, and no longer the real specialists (researchers), but lawyers (who are not trained for this) determine what can and may be said about facts in the past. Moreover, almost every historical question is politically charged. By establishing with a simple majority what can be said and what cannot, you risk getting an entrenched one-sided view of history. Or, even more, to create international problems. Suppose Belgium makes it a criminal offense to deny an act that would have been committed in another state, but it is denied there. That means that the Belgian parliament is going to play judge against another sovereign country over which it simply has no jurisdiction. It is also practically impossible internally to conduct trials (and thus legally determine the truth) for genocides from the past. Theoretically, genocide is a retroactive international crime, but in practice, reviving old discussions can reopen wounds.

In Belgium there is not really a memory policy like in France, with special laws that make it compulsory to treat something in education. Like many other countries, we have laws that punish negationism and racism, or another anti-discrimination law. These are not up for discussion, because they protect essential values ​​of our society. You can never predict how this debate will evolve. Trade-offs between Constitution and Law, or discussions about how much room there is for government intervention, are closely related to national history and value systems (what does our society consider essential?).

For the sake of clarity, the rule remains that you can say whatever you want. Also hurtful and shocking opinions are protected by the Constitution and the international treaties. If someone is accused of racist, negationist or discriminatory (criminal) statements, it is -as always in criminal law- up to the government (the public prosecutor) to prove that the opinion in question is not protected. Freedom is the rule, punishment the exception for really serious cases.