Has the United Nations Security Council referred cases involving non-member state nationals to the ICC?

1. How referrals work and why they matter: UNSC’s Article 13(b) tool

The Rome Statute allows the ICC to receive situation referrals from the UN Security Council under Article 13(b); the Council can thus trigger ICC jurisdiction over crimes in states not party to the Statute or over nationals of non‑State parties by acting under Chapter VII of the UN Charter — a mechanism meant to promote universal accountability beyond the circle of ratifiers ^{[2] [4]}.

2. The real world: two concrete UNSC referrals involving non‑State parties

To date the Council has used that power in two high‑profile cases: it referred the Darfur situation in Sudan in 2005 and the Libya situation in 2011. Both referrals targeted situations in states that had not ratified the Rome Statute and thereby permitted the ICC to investigate and prosecute alleged crimes linked to those situations ^{[1] [4]}.

3. Legal flashpoints: immunity, legality and the scope of jurisdiction

Academic commentary highlights persistent legal disputes created by referrals: whether a Chapter VII referral removes customary immunities (immunity ratione personae) for heads of state and other senior officials of non‑State parties remains contested; the literature notes disagreement about the reach of immunity and how far a UNSC referral implicitly binds non‑parties to cooperate ^[3]. Appellate ICC jurisprudence has further engaged questions about principle of legality when the Court exercises jurisdiction over individuals neither nationals of a State Party nor alleged to have acted on State Party territory ^[5].

4. Political constraints and selectivity: referrals are powerful but politicised

Commentators and civil‑society actors warn that UNSC referrals are inherently political. The Council’s exercise of referral authority has been selective — both referrals concerned African states — and the use (and failure) of referrals has highlighted the Council’s geopolitical dynamics, including P5 vetoes that prevented a Syria referral and the controversial exclusionary provisions sometimes inserted into referral texts ^{[6] [4] [1]}.

5. Drafting matters: “toxic paragraphs” and exclusions can limit the ICC’s reach

Analysts have flagged that particular language in referral resolutions can constrain the Court’s work — for example, clauses that explicitly exclude nationals of certain non‑State parties or carve out peacekeepers have been described as undermining the impartiality and effectiveness of ICC investigations arising from UNSC referrals ^{[4] [1]}.

6. Institutional tensions: UNSC power versus ICC independence

Scholarship frames UNSC referrals as part of a three‑pillar relationship between Council powers and the ICC — referrals, deferrals under Article 16, and the Council’s role on aggression — and stresses that the Council’s political discretion is not tightly normatively regulated, producing tensions between political decision‑making and judicial predictability ^{[2] [7]}.

7. Competing views and open questions

Sources present two competing readings: one sees UNSC referrals as a vital mechanism to extend accountability into non‑State parties; the other sees them as subject to strategic use, legal limits, and risks to ICC legitimacy when the Council inserts exclusions or acts inconsistently. Available sources do not mention any Security Council referral other than Darfur and Libya nor do they report a Council referral that universally waived immunities without debate ^{[1] [3] [4]}.

8. Bottom line for readers

Factually: the UNSC has referred situations involving non‑State Parties to the ICC (Darfur and Libya), thereby enabling ICC jurisdiction over nationals of non‑member states in those situations ^{[1] [4]}. Analytically: those referrals extend the Court’s reach but generate legal disputes (immunity, legality) and political critiques (selectivity, drafting limits), as reflected in academic and NGO sources ^{[3] [5] [1] [4]}.