Organisational change and fundamental rights in the Dutch army: 1966?1976

Abstract

The beginnings of modem military penal and disciplinary law coincide with the so-called military revolution (1560-1660) [1]. During this period the army was created, more or less as it still exists to this day: an organisation of strict discipline, hierarchical structure and subject to the State. In 1590 the "Artyculbrief ofte Ordonnantie op de Discipline Militaire" was drafted in the Netherlands for the mercenaries of Prince Maurice. The drill of the mercenaries allowed them to function as cogs in a machine, as it were. This military penal code was adopted by the States-General. It defined offences, punishments and the jurisdiction of the court martial. The "Artyculbrief" was replaced in 1799 by the "Regulations of Military Discipline or Criminal Code for the State Militia." In 1814/1815, new laws in the field of military penal and disciplinary law and procedure were created, though not to everyone's satisfaction. In 1923, a new military penal code was introduced which put an end to analogical interpretation that had been possible ever since the "Artyculbrief". In 1963, the military law of criminal procedure was partly amended. Since 1965, a parliamentary procedure for the complete revision of military criminal procedural law has been pending, while much work has been done on military disciplinary law since 1967 this latter circumstance being of some consequence for military penal law too. The Netherlands is not the only country where fundamental rights would appear to lead a laborious existence in the armed forces. Fundamental rights vary in meaning, just as the societies in which they have developed vary. While fundamental rights in America were of a pre-state nature, were pre-political, self-evident rights, on the European continent they were political achievements. They gave rise to the New Order after the fall of the Ancien Regime, an order in which the separation of powers [2] was to prevent tyranny. Specifically, the separation of powers in Europe can also be seen as the rational division of the three state tasks: legislation, administration and judicature, the result being reliable and calculable law [3]. (Whether this is still