Criminal courts stand at the heart of the field of criminal justice, endorsing actions taken at earlier and later stages of the criminal justice process. Police and prosecution seek approval of the courts for particular investigative techniques and bring completed investigations before the court. Prisons draw a degree of legitimacy from the fact that their work represents the realisation of decisions made in the courts. Bourdieu (2002: 824) describes a ‘chain of legitimation’ removing individual acts from the category of arbitrary violence and the courts provide a vital link in this chain. The judicial system has been said to hold the ‘center of ideals’ of Western governments (Arnold 1965: 128); in the criminal trial itself the dignity of the state and individual are juxtaposed (Arnold 1965: 128). As well as this symbolic significance, the trial can have an important functional element in prompting and informing public debate. The criminal case, like other less formal responses to ‘trouble’ serves as an empirical example against which norms and values are tried and tested (Arnold 1965: 42; Llewellyn and Hoebel 1941: 23 ff). The criminal courts are thus central to the legitimacy of the coercive elements of state activity and to the criminal justice agencies in which such coercive power is invested. In spite of this central position it has been observed that, with some exceptions, criminological research has tended to focus on policing and corrections; the black box of courts linking the two is left as the remit of legal scholars (Brodeur and Shearing 2005: 382). Yet to analyse international interventions in policing and prison services without also engaging with criminal courts would leave a significant gap in understanding international intervention in criminal justice in Bosnia and Herzegovina (BiH).

This chapter starts by discussing the role that courts play in society, before examining their particular role in societies undergoing transition from periods of conflict or authoritarian government. The importance of particular procedural techniques is examined through a brief discussion of plea-bargaining, underpinning a more detailed discussion in relation to BiH in chapter 6. The subject of plea bargaining is also put into the context of policy transfer and legal transplant literature, first introduced in chapter 1.