While not provided for in the regulations, higher authorities occasionally ordered drumhead courts-martial, despite regulations that no soldier should suffer death except by concurrence of two-thirds of the members of a general court-martial. Although the availability of records and extent to which executions were reported makes certainty difficult, it seems that, contrary to conventional wisdom, few of the proceedings involving execution of black soldiers were drumhead in nature.
While generally applied to situations where soldiers resisted orders or acted violently, some commanders of black troops overstepped their authority and shot soldiers where a lesser punishment, or at least trial by general court-martial, was appropriate.
interpreted as a slur upon their race." Some court-martial panels even considered the defendant's familiarity with military regulations, in keeping with initiatives to ensure that black troops understood that army discipline was not based on the rule of individuals but a codified structure of law.
Procedurally, a defendant facing a general court-martial during the Civil War had the right to challenge members of the panel and was informed of his right to retain counsel.
At times, the court-martial process also validated an idea that civilian blacks had rights to testify to events, not just those blacks in uniform.
Regardless of a defendant's race, court-martial panels could impose justice harshly.
A court-martial convicted the teenaged Shaw for murder, but a defect in the proceedings regarding the calling of the court negated his punishment and he returned to duty.
Thus, where the judge advocate's office found that members of a black regiment who briefly mutinied were "clearly wholly provoked" by the "cruel, brutal, and inexcusable violence of their officer," it recommended mitigation of a death sentence imposed by court-martial on one of the mutineers and that the officer be court-martialed.
The European Court of Human Rights found that the role of the convening officer was such as to deprive Lance Sergeant Findlay of a fair trial by "an independent and impartial tribunal." (7) It stated that the convening officer played a central role in the prosecution of the case and that all the members of the court-martial board were subordinate in rank to him and under his command.
It was hoped that the Act would ensure that the court-martial system would comply more fully with the European Convention on Human Rights and thus survive any similar challenges in the future.
This was a massive undertaking involving scrutiny of all aspects of the disciplinary system, from internal unit level to that of the Court-Martial Appeal Court.
Such action is normally taken where the charge is one which will be dealt with by way of court-martial rather than by the commanding officer himself.
Such offences are commonly termed "Service offences." It should be noted, however, that though every Service offence may be dealt with by way of court-martial, certain offences are deemed appropriate for summary disposal, and a list of these offences is set out at Regulation 5 of the PCCSDRs.
In an Orderly Room proceeding, the accused person will be marched before the commanding officer, who will satisfy himself that the accused person has been afforded his rights in relation to election for trial by court-martial and has had sufficient time to prepare for the hearing.
The jurisdiction in the Army and Royal Air Force is limited to minor civil offences and most of the disciplinary offences contained within the Army Act and Air Force Act 1955 (except where court-martial is specifically required (31)).